Exhibit 11
By-Laws
ARTICLE XI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS
Section 1. Authorization for Indemnification of Directors and Officers.
The Corporation shall 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 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 interstate (sic), 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
interest of the Corporation and, in criminal actions or proceedings, in
addition, had no reasonable cause to believe that his conduct was unlawful.
The termination of any such civil or criminal action or proceeding by
judgment, settlement, convection 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.
The Corporation shall 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 of
kind, domestic or foreign, or 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 hin 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
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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 (1) a threatened action, or a pending action which is settled or
otherwise disposed of, or (2) 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.
Section 2. Nonexclusivity of Provisions for Indemnification of Directors
and Officers. The indemnification and advancement of expenses granted pursuant
to, or provided by, this Article XI 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 certificate of incorporation
or these by-laws or, when authorized by such certificate of incorporation or
by-laws, (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. Nothing contained in this
Article XI shall affect any rights to indemnification to which corporate
personnel other than directors and officers may be entitled by contract or
otherwise under law.
Section 3. Payment of Indemnification. A person who has been successful,
on the merits or otherwise, in the defense of a civil or criminal action or
proceeding of the character described in Section 1 of this Article XI shall be
entitled to indemnification as authorized in such section.
Except as provided in the foregoing subparagraph, any indemnification
under Section 1 of this Article XI or otherwise permitted by Section 2 of this
Article XI, unless ordered by a court shall be made by the Corporation, only if
authorized in the specific case:
(i) by the board acting by a quorum consisting of directors who are not
parties to such action or proceeding upon a finding that the director or officer
has met the standards of conduct set forth in Section 1 of this Article XI or
established pursuant to Section 2 of this Article XI, as the case may be, or,
(ii) if a quorum under subparagraph (i) is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs; or
(iii) by the board upon the opinion in writing of independent legal
counsel that indemnification is proper in the circumstances because the
applicable standard of conduct set forth in such sections has been met by such
director or officer, or
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(iv) by the shareholders upon a finding that the director or officer has
met the applicable standard of conduct set forth in such sections.
Expenses incurred in defending a civil or criminal action or proceeding
may be paid by the Corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount as, and to the extent, required by
paragraph (a) of Section 725 of the Business Corporation Law of New York.
Section 4. Insurance for Indemnification of Directors and Officers. (a)
Subject to subparagraph (b) below, the Corporation shall have power to purchase
and maintain insurance:
(1) to indemnify the Corporation for any obligation which it incurs
as a result of the indemnification of directors and officers under the
provisions of this Article, and
(2) to indemnify directors and officers in instances in which they
may be indemnified by the Corporation under the provisions of this Article, and
(3) to indemnify directors and officers in instances in which they
may not otherwise be indemnified by the Corporation under the provisions of this
Article provided the contract of insurance covering such directors and officers
provides, in manner acceptable to the superintendent of insurance, for a
retention amount and for coinsurance.
(b) No insurance under paragraph (a) may provide for any payment, other
than cost of defense, to or on behalf of any director or officer:
(1) if a judgment or other final adjudication adverse to the insured
director or officer establishes that his acts of active and deliberate
dishonesty 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, or
(2) in relation to any risk the insurance of which is prohibited
under the insurance law of this state.
(c) Insurance under any or all subparagraphs of paragraph (a) may be
included in a single contract or supplement thereto. Retrospective rated
contracts are prohibited.
(d) The Corporation shall, in accordance with the Business Corporation Law
of New York, mail a statement in respect of any insurance it has purchased or
renewed under this section specifying the insurance carrier, date of the
contract, cost of the insurance, corporate positions insured, and a statement
explaining all sums, not previously reported in a statement to shareholders,
paid under any indemnification insurance contract.
