which the director derived an improper personal benefit. Article 12 of the Registrants Restated Certificate of Incorporation provides that a director of the Registrant shall not be
personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that such exemption from liability or the limitation thereof is not permitted under the DGCL.
Under Section 145 of the DGCL, a corporation is permitted to indemnify any 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 (other than action by or in the right of the corporation), by reason of the fact that the person is or was an officer,
director, employee or agent of the corporation or is or was serving at the request of the corporation as an officer, director, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such proceeding: (1) if the person acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation; and (2) in the case of a criminal proceeding, the person had no reasonable cause to believe that his conduct was unlawful.
A corporation also is permitted to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to obtain a judgment in its favor by reason of the fact that the person is or was an officer, director, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees) actually and reasonably incurred in connection with the
defense or settlement of such action or suit if the person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no such indemnification is permitted with respect to
any claim, issue or matter as to which the person is found liable to the corporation unless and to the extent that the Delaware Court of Chancery or the court in which the action or suit is brought determines that, despite the adjudication of
liability, the person is fairly and reasonably entitled to indemnification for such expenses as the court shall deem proper.
A
corporation must indemnify any present or former director or officer of the corporation who is successful on the merits or otherwise in the defense of any action, suit or proceeding referred to above, or in defense of any claim, issue or matter
therein, against expenses (including attorneys fees) actually and reasonably incurred by such person in connection therewith. Such expenses incurred by a present officer or director may be paid by the corporation in advance of the final
disposition of such proceedings upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that the person is not entitled to be indemnified by the corporation and such
expenses incurred by a former officer or director or other employee or agent may be paid by the corporation in advance of the final disposition of such proceeding upon the terms and conditions, if any, as the corporation deems appropriate. The
Registrants
By-laws
contain specific authority for indemnification by the Registrant of current or former directors, officers, employees or agents of the Registrant on terms that have been derived from
Section 145 of the DGCL.
Additionally, the Registrant has entered into agreements with certain of its directors and executive
officers pursuant to which the Registrant has agreed to indemnify such directors and executive officers to the maximum extent permitted under the DGCL and in accordance with the Registrants
By-laws
and
directors and officers insurance policy.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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