Item 6.
Indemnification of Directors and Officers
.
The Registrant is a Delaware corporation. Reference is made to Section 145 of the Delaware General Corporation Law ("DGCL"), which authorizes indemnification of directors, officers, employees and agents of the Registrant; allows the advancement of costs of defending against litigation; and permits companies incorporated in Delaware to purchase insurance on behalf of directors, officers, employees and agents against liabilities whether or not the company would have the power to indemnify such person against such liabilities under the provisions of the statute.
The Registrant's Certificate of Incorporation and its Fourth Amended and Restated By‑Laws ("Bylaws") provide for indemnification of its officers and directors to the full extent permitted by Section 145 of the DGCL and eliminates, to the fullest extent permitted by Delaware law, liability of a director to the Registrant or its stockholders for monetary damages for a breach of such director's fiduciary duty of care except for liability where a director (a) breaches his or her duty of loyalty to the Registrant or its stockholders, (b) fails to act in good faith or engages in intentional misconduct or knowing violation of law, (c) fails to dissent (unless absent) from payment of an unlawful dividend or an unlawful stock purchase or redemption or (d) obtains an improper personal benefit.
Under the provisions of the Bylaws, the Registrant is required to indemnify officers or directors to a greater extent than under the current provisions of Section 145 of the DGCL. The Bylaws generally provide that the director or officer will be indemnified against expenses, amounts paid in settlement and judgments, fines, penalties and/or other amounts incurred with respect to any threatened, pending or completed proceeding, provided that such person did not engage in conduct that constitutes a "Breach of Duty" (as defined in the Bylaws). Breach of Duty generally means that such director or officer breached or failed to perform his or her duties to the Registrant, and such breach of or failure to perform those duties constituted: (i) a breach of his or her duty of loyalty to the corporation or its shareholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) a violation of Section 174 of the DGCL, or (iv) a transaction from which such director or officer derived a material improper direct personal financial profit (unless such profit is determined to be immaterial in light of all the circumstances), as further detailed in the Bylaws. The Bylaws also provide that the Registrant is required to advance expenses to its directors and officers as incurred in connection with legal proceedings against them for which they may be indemnified, provided such director or officer supplies a written certificate to the Registrant stating that he or she believes in good faith that he or she has met the applicable standard of conduct and that he or she will repay such advances in the event it is ultimately determined that such director or officer is not entitled to be indemnified for such amounts.
The Registrant has entered into indemnification agreements in the form described below with each person who is currently a member of the Board and will enter into such agreements with persons who in the future become directors of the Registrant. Such indemnification agreements provide for indemnification against any and all expenses incurred in connection with, as well as any and all judgments, fines, and amounts paid in settlement resulting from, any threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (collectively an "Action"), by reason of the fact that such director is or was a director, officer, employee or agent of the Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, or other enterprise. The indemnification agreements provide that if any payment, advance or indemnification of the director requires that he or she acted in good faith, in a manner he or she reasonably believed to be for or not opposed to the best interests of the Registrant or without reasonable cause to believe his or her conduct was unlawful, then it shall be presumed that he or she so acted unless proven otherwise by clear and convincing evidence. The indemnification agreements also provide for the advancement of all expenses, including reasonable attorneys' fees, arising from the investigation of any claim, preparation for the defense or defense or settlement of an Action. The indemnification agreements authorize the Registrant to participate in the defense of any action and to assume the defense thereof, with counsel who shall be reasonably satisfactory to the director, provided that the director shall be entitled to separate counsel of his or her choosing if he or she reasonably believes that (i) there exists conflicting interests between himself or herself and the Registrant or other parties (the defense of whom the Registrant shall have assumed) or (ii) there is any substantial likelihood that the Registrant will be financially or legally unable to satisfy its obligations under the Indemnification Agreement. The indemnification agreements provide that a director's rights under such contract are not exclusive of any other indemnification rights he or she may have under any provision of law, the Registrant's Certificate of Incorporation or Bylaws, the vote of the Registrant's stockholders or disinterested directors, other agreements or otherwise.