Wilmer Cutler Pickering Hale and Dorr LLP has opined as to the legality of the securities being offered by this registration statement.
Item 6. Indemnification of Directors and Officers.
Section 8.52 of Chapter 156D of the Massachusetts General Laws provides that a corporation shall indemnify a director who was wholly
successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding.
Section 8.51 of Chapter 156D of the Massachusetts General Laws provides that a corporation may indemnify a director who is a party to a proceeding because he is a director against liability incurred in the proceeding if:
|
|
|
|
|
(1)
|
|
(i)
|
|
he or she conducted himself or herself in good faith; and
|
|
|
|
|
|
(ii)
|
|
he or she reasonably believed that his or her conduct was in the best interests of the corporation or that his or her conduct was at least not opposed to the best interests of the corporation; and
|
|
|
|
|
|
(iii)
|
|
in the case of any criminal proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful; or
|
|
(2)
|
he or she engaged in conduct for which he or she shall not be liable under a provision of the corporations articles of organization authorized by Section 2.02(b)(4) of Chapter 156D of the Massachusetts
General Laws.
|
Section 8.56 of Chapter 156D of the Massachusetts General Laws provides that a corporation may indemnify
and advance expenses to an officer of the corporation who is a party to a proceeding because he or she is an officer of the corporation.
|
(1)
|
to the same extent as a director; and
|
|
(2)
|
if he or she is an officer but not a director, to such further extent as may be provided by the articles of organization, the bylaws, a resolution of the board of directors, or contract except for liability arising out
of acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law.
|
Clause
(2) immediately above, however, applies to an officer who is also a director if the basis on which he or she is made a party to the proceeding is an act or omission solely as an officer.
Section 8.56 also provides that an officer of a corporation who is not a director is entitled to mandatory indemnification under
Section 8.52, and that the officer may apply to a court for indemnification or an advance for expenses, in each case to the same extent to which a director may be entitled to indemnification or advance under those provisions.
Section 8.57 of the Massachusetts General Laws also affords a Massachusetts corporation the power to purchase and maintain insurance on
behalf of its directors and officers against liabilities asserted against or incurred by them in these capacities or arising from his or her status as a director or officer.
Section 2.02(b)(4) of Chapter 156D of the Massachusetts General Laws provides that the articles of organization of a corporation may
include a provision eliminating or limiting the personal liability of a
- 2 -
director to the corporation for monetary damages for breach of fiduciary duty as a director, provided, however, that such provision shall not eliminate or limit the liability of a director
(a) for any breach of the directors duty of loyalty to the corporation or its shareholders, (b) for acts or omission not in good faith or which involve intentional misconduct or a knowing violation of law, (c) for improper
distributions to shareholders, or (d) for any transaction from which the director derived an improper personal benefit. The registrant has included such a provision in its articles of organization.
The registrants articles of organization (Article 6) provides the following:
The corporation shall to the fullest extent legally permissible indemnify each person who is or was a director, officer,
employee or other agent of the corporation and each person who is or was serving at the request of the corporation as a director, trustee, officer, employee or other agent of another corporation or of any partnership, joint venture, trust, employee
benefit plan or other enterprise or organization against all liabilities, costs and expenses, including but not limited to amounts paid in satisfaction of judgments, in settlement or as fines and penalties, and counsel fees and disbursements,
reasonably incurred by him in connection with the defense or disposition of or otherwise in connection with or resulting from any action, suit or other proceeding, whether civil, criminal, administrative or investigative, before any court or
administrative or legislative or investigative body, in which he may be or may have been involved as a party or otherwise or with which he may be or may have been threatened, while in office or thereafter, by reason of his being or having been such
a director, officer, employee, agent or trustee, or by reason of any action taken or not taken in any such capacity, except with respect to any matter as to which he shall have been finally adjudicated by a court of competent jurisdiction not to
have acted in good faith in the reasonable belief that his action was in the best interests of the corporation (any person serving another organization in one or more of the indicated capacities at the request of the corporation who shall not have
been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of such other organization shall be deemed so to have acted in good faith with respect to the corporation) or to the
extent that such matter relates to service with respect to an employee benefit plan, in the best interest of the participants or beneficiaries of such employee benefit plan. Expenses, including but not limited to counsel fees and disbursements, or
incurred by any such person in defending any such action, suit or proceeding, shall be paid from time to time by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of
the person indemnified to repay the amounts so paid if it shall ultimately be determined that indemnification of such expenses is not authorized hereunder.
If, in an action, suit or proceeding brought by or in the name of the corporation, a director of the corporation is held not
liable for monetary damages, whether because that director is relieved of personal liability under the provisions of this Article Six of the Articles of Organization, or otherwise, that director shall be deemed to have met the standard of conduct
set forth above and to be entitled to indemnification for expenses reasonably incurred in the defense of such action, suit or proceeding.
As to any matter disposed of by settlement by such person, pursuant to a consent decree or otherwise, no such indemnification
either for the amount of such settlement or for any other expenses shall be provided unless such settlement shall be approved as in the best interests of the corporation, after notice that it involves such indemnification, (a) by vote of a
majority of the disinterested directors then in office (even though the disinterested directors be less than a quorum), or (b) by any disinterested person or persons to whom the question may be referred by vote of a majority of such
disinterested directors, or (c) by vote of the holders of a majority of the outstanding stock at the time entitled to vote for directors, voting as a single class, exclusive of any stock owned by any interested person, or (d) by any
disinterested person or persons to whom the question may be referred by vote of the holders of a majority of such stock. No such approval
- 3 -
shall prevent the recovery from any such director, officer, employee, agent or trustee of any amounts paid to him or on his behalf as indemnification in accordance with the preceding sentence if
such person is subsequently adjudicated by a court of competent jurisdiction not to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation.
The right of indemnification hereby provided shall not be exclusive of or affect any other rights to which any director,
officer, employee, agent or trustee may be entitled or which may lawfully be granted to him. As used herein, the terms director, officer, employee, agent, and trustee include their
respective executors, administrators and other legal representatives, an interested person is one against whom the action, suit or other proceeding in question or another action, suit or other proceeding on the same or similar grounds is
then or had been pending or threatened, and a disinterested person is a person against whom no such action, suit or other proceeding is then or had been pending or threatened.
By action of the board of directors, notwithstanding any interest of the directors in such action, the corporation may purchase
and maintain insurance, in such amounts as the board of directors may from time to time deem appropriate, on behalf of any person who is or was a director, officer, employee or other agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee or other agent of another corporation or of any partnership, joint venture, trust, employee benefit plan or other enterprise or organization against any liability incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability.
A director of this corporation shall not be personally liable to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director notwithstanding any provision of law imposing such liability, provided, however, that this paragraph of Article Six shall not eliminate the liability of a director to the extent such liability is imposed by
applicable law (i) for any breach of the directors duty of loyalty to this corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
(iii) for any transaction from which the director derived an improper personal benefit, or (iv) for paying a dividend, approving a stock repurchase or making loans which are illegal under certain provisions of Massachusetts law, as the
same exists or hereafter may be amended. If Massachusetts law is hereafter amended to authorize the further limitation of the legal liability of the directors of this corporation, the liability of the directors shall then be deemed to be limited to
the fullest extent then permitted by Massachusetts law as so amended. Any repeal or modification of this paragraph of this Article Six which may hereafter be effected by the stockholders of this corporation shall be prospective only, and shall not
adversely affect any limitation on the liability of a director for acts or omissions prior to such repeal or modification.
The
registrant has entered into agreements to indemnify its directors and executive officers. These agreements, among other things, provide that the registrant will indemnify the director or executive officer to the fullest extent permitted by law for
claims arising in his or her capacity as a director or officer of the registrant or in connection with his or her service at the request of the registrant for another corporation or entity. The indemnification agreements also establish the
procedures that will apply in the event a director or officer makes a claim for indemnification. Additionally, certain of the directors and executive officers of the registrant have entered into indemnification agreements with State Street Bank and
Trust Company, relating to their service as directors and executive officers of State Street Bank and Trust Company and with substantially similar terms as those described above.
In addition, the registrant maintains a directors and officers liability insurance policy.
- 4 -
Item 9. Undertakings.
1.
Item 512(a) of Regulation S-K
. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration statement;
provided, however,
that paragraphs (i) and
(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of the offering.
2.
Item 512(b) of Regulation
S-K
. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial
bona fide
offering thereof.
3.
Item 512(h) of Regulation S-K
. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities
- 5 -
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
- 6 -