Our Third Amended and Restated Certificate of Incorporation (as amended, the Charter), generally
provides that we will indemnify our directors and officers to the fullest extent permitted by applicable law.
Our Charter expressly provides:
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for indemnification, to the maximum extent permitted by applicable law, against all liability and losses suffered
and expenses (including attorneys fees) reasonably incurred, of any person (a Covered Person) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (a Proceeding), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Company or, while a director or
officer of the Company, is or was serving at the request of the Company as a director, officer, employee or agent of another entity or enterprise, including service with respect to employee benefit plans;
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for the prepayment of expenses (including attorneys fees) to the extent not prohibited by applicable law;
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that if a claim for indemnification or advancement of expenses is not paid in full within 30 days, the Covered
Person may file suit to recover the unpaid amount and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim;
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that the rights provided in the indemnification provision are not exclusive; and
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that we are the indemnitor of first resort and if any third party pays or causes to be paid the indemnifiable
amounts then the third party shall be fully subrogated to all rights of the Covered Person with respect to such payment, and we will fully indemnify, reimburse and hold harmless such third party for all such payments actually made by the third
party.
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Our Charter also specifies that any amendment or repeal of this provision will not adversely affect any right or protection in
respect of any act or omission occurring prior to the time of the amendment or repeal. Finally, we may also advance expenses and indemnify persons other than Covered Persons to the extent permitted by applicable law.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the directors duty of loyalty to the corporation or its stockholders,
(2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions or (4) for any
transaction from which the director derived an improper personal benefit.
Our Charter states that directors will not be personally liable to the Company
or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted under the DGCL.
These provisions only
apply to breaches of duty by directors as directors and not in any other corporate capacity, such as officers. In addition, these provisions limit liability only for breaches of fiduciary duties under the DGCL and not for violations of other laws
such as the U.S. federal securities laws and U.S. federal and state environmental laws. As a result of these provisions in our Charter, our stockholders may be unable to recover monetary damages against directors for actions taken by them that
constitute negligence or gross negligence or that are in violation of their fiduciary duties. However, our stockholders may obtain injunctive or other equitable relief for these actions. These provisions also reduce the likelihood of derivative
litigation against directors that might benefit us.
We entered into indemnification agreements (the Original Indemnification Agreements) with
Jeff Hastings, Brian Beatty, Brent Whiteley, Mike Scott, Darin Silvernagle, Ryan Abney, Gary Dalton, L. Melvin Cooper and Jacob Mercer (each, an Original Indemnitee) on July 27, 2016. We entered into indemnification agreements (the
New Indemnification Agreements and together with the Original Indemnification Agreements, the Indemnification Agreements) with Michael Faust and Alan Menkes (the New Indemnitees and together with the Original
Indemnitees, each an Indemnitee) on June 1, 2017 and January 30, 2018, respectively. The Indemnification Agreements supersede and replace the indemnification agreements previously entered into with any such individuals. The
Indemnification Agreements are intended to provide indemnification rights for actions or omissions to act while the Indemnitees are or were acting as directors, officers, employees or agents of the Company (among certain other limited roles). In
connection therewith, we will indemnify (except in certain limited circumstances) the Indemnitees against, among other things, all expenses (including attorneys fees), damages, losses, liabilities, judgments, fines, penalties (whether civil,
criminal or other), Employee Retirement Income Security Act of 1974 losses and amounts paid in settlement pursuant to (i) any threatened, asserted, pending or completed claim, demand, action, suit or proceeding, whether civil, criminal,
administrative, arbitrative, investigative or other, and whether made pursuant to federal, state or other law, and (ii) any threatened, pending or completed inquiry or investigation, whether made, instituted or conducted by or at our behest or
any other person, including any federal, state or other court or governmental entity or agency and any committee or other representative of any corporate constituency, to the fullest extent permitted by applicable law. In addition, the
Indemnification Agreements provide for the advancement of expenses incurred by the Indemnitees in connection with any proceeding covered by the Indemnification Agreements, provided that the Indemnitees must repay the advanced amounts if, upon
conclusion of the proceeding, it is ultimately determined that the Indemnitees were not entitled to indemnification. In addition, the Indemnification Agreements provide that we will use all commercially reasonable efforts to obtain and maintain in
effect for so long as the Indemnitee may have any liability or potential liability by reason of his relationship with us, one or more insurance policies providing our directors and officers coverage for losses from wrongful acts and omissions and to
ensure our performance of our indemnification obligations under each Indemnification Agreement.
There is no pending litigation or proceeding involving
any of our directors, officers, employees or other agents as to which indemnification is being sought, nor are we aware of any pending or threatened litigation that may result in claims for indemnification by any director, officer, employee or other
agent.
Item 7.
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Exemption from Registration Claimed.
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Not applicable.