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cancellation of the outstanding award in exchange for a payment (if any) equal to the fair market value of a
share of common stock as of the closing date of the merger or consolidation minus the
per-share
exercise price of the award (if any).
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Subject to the limitations of the 2011 Stock Incentive Plan, our board of directors may modify, extend or assume outstanding options and RSUs
and may accept the cancellation of outstanding options in return for the grant of new options for the same or a different number of shares of our common stock or a different exercise price.
As of March 15, 2019, options to purchase 7,630,290 shares of common stock were outstanding under the 2011 Stock Incentive Plan, at a
weighted-average exercise price of $5.94 per share, and options to purchase 10,194,295 shares of our common stock had been exercised. In addition, as of such date, 160,425 RSUs were outstanding under the 2011 Stock Incentive Plan.
No further awards will be made under our 2011 Stock Incentive Plan; however, awards outstanding under our 2011 Stock Incentive Plan will
continue to be governed by their existing terms.
Limitation of Liability and Indemnification
Our restated certificate of incorporation limits the personal liability of directors for breach of fiduciary duty to the maximum extent
permitted by the Delaware General Corporation Law and provides that no director will have personal liability to us or to our stockholders for monetary damages for breach of fiduciary duty or other duty as a director. However, these provisions
do not eliminate or limit the liability of any of our directors:
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for any breach of the directors duty of loyalty to us or our stockholders;
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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for voting or assenting to unlawful payments of dividends, stock repurchases or other distributions; or
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for any transaction from which the director derived an improper personal benefit.
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Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission
or claim that occurred or arose prior to such amendment or repeal. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of our
directors will be further limited to the greatest extent permitted by the Delaware General Corporation Law.
In addition, our restated
certificate of incorporation provides that we must indemnify our directors and officers and we must advance expenses, including attorneys fees, to our directors and officers in connection with legal proceedings, subject to very limited
exceptions.
We maintain a general liability insurance policy that covers certain liabilities of our directors and officers arising out of
claims based on acts or omissions in their capacities as directors or officers. In addition, we have entered into indemnification agreements with each of our directors and executive officers. These indemnification agreements may require
us, among other things, to indemnify each such director and executive officer for some expenses, including attorneys fees, judgments, fines and settlement amounts incurred by him or her in any action or proceeding arising out of his or her
service as one of our directors or executive officers.
Certain of our
non-employee
directors may,
through their relationships with their employers, be insured and/or indemnified against certain liabilities incurred in their capacity as members of our board of directors. We have agreed that we will be the indemnitor of first
resort, however, with respect to any claims against these directors for indemnification claims that are indemnifiable by both us and their employers. Accordingly, to the extent that indemnification is permissible under applicable law, we
will have full liability for such claims (including for the advancement of any expenses) and we have waived all related rights of contribution, subrogation or other recovery that we might otherwise have against these directors employers.
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