Item 6. |
Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law authorizes a corporations board of directors to grant, and authorizes a court to award,
indemnity to officers, directors, and other corporate agents, provided that the person acted in good faith and in a manner the person reasonably believed to be in the corporations best interests, and, with respect to any criminal action, had
no reasonable cause to believe the persons actions were unlawful. The Delaware General Corporation Law further provides that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and
officers may be entitled under the corporations bylaws, any agreement, a vote of stockholders or otherwise.
The Registrants amended and
restated certificate of incorporation contains provisions that limit the liability of its directors for monetary damages to the fullest extent permitted by the Delaware General Corporation Law. Consequently, the Registrants directors are not
personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for the following:
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any breach of their duty of loyalty to the Registrant or its stockholders; |
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any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of
the Delaware General Corporation Law; or |
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any transaction from which they derived an improper personal benefit. |
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 that 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 the Registrants
directors will be further limited to the greatest extent permitted by the Delaware General Corporation Law.
In addition, the Registrants amended
and restated bylaws provide that the Registrant will indemnify, to the fullest extent permitted by law, any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that they are or
were one of the Registrants directors or officers or is or was serving at the Registrants request as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. The Registrants amended and
restated bylaws provide that the Registrant may indemnify to the fullest extent permitted by law any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is or was
one of the Registrants employees or agents or is or was serving at the Registrants request as an employee or agent of another corporation, partnership, joint venture, trust, or other enterprise. The Registrants amended and restated
bylaws also provide that the Registrant must advance expenses incurred by or on behalf of a director or officer in advance of the final disposition of any action or proceeding, subject to limited exceptions.
Section 102(b)(7) of the Delaware General Corporation Law 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 (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 payments of unlawful dividends or unlawful stock repurchases or redemptions or (4) for any
transaction from which the director derived an improper personal benefit. The Registrants amended and restated certificate of incorporation provides that the Registrants directors shall not be personally liable to it or its stockholders
for monetary damages for breach of fiduciary duty as a director and that if the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the
Registrants directors shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Section 174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an unlawful
payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her
dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
Further, as permitted by the Delaware General Corporation Law, the Registrant has entered into separate indemnification agreements with each of its directors
and certain executive officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements require the Registrant, among other things, to indemnify its
directors and executive officers against certain liabilities that may arise by reason of their status or service.
The Registrant has obtained insurance
policies under which, within the limits and subject to the limitations of the policies, coverage is provided to the Registrants directors and executive officers against certain expenses in connection with the defense of, and certain
liabilities arising from claims made by reason of breach of fiduciary duty or other wrongful acts as a director or executive officer, including claims relating to public securities matters, and to the Registrant with respect to payments that may be
made by the Registrant to these directors and executive officers pursuant to its indemnification obligations or otherwise as a matter of law. The coverage provided by these policies may apply whether or not the Registrant would have the power to
indemnify such person against such liability under the provisions of the Delaware General Corporation Law.