|
Item 6.
|
Indemnification of Directors and Officers.
|
Section 145 of the
General Corporation Law of the State of Delaware provides as follows:
“A corporation
shall have power 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 an action by or in the
right of the corporation) by reason of the fact that the person is or was a director, officer, 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), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted
in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
A corporation shall
have power 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 procure a judgment in its favor by reason of the fact that the person is
or was a director, officer, 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 by the person in connection with the defense or settlement of such action
or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.”
The Registrant’s
second amended and restated certificate of incorporation (as amended) provides that it will indemnify each 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 an action by or in the right of the Registrant) by reason of the fact that
he or she is or was, or has agreed to become, its director or officer, or is or was serving, or has agreed to serve, at the Registrant’s
request as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust
or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom,
if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests
of the Registrant, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or
her conduct was unlawful.
The Registrant’s
second amended and restated certificate of incorporation (as amended) also provides that it will indemnify any Indemnitee 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 Registrant to procure a judgment in the Registrant’s favor by reason of the fact that the Indemnitee is or was, or has
agreed to become, its director or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a
director, officer or trustee or, or in a similar capacity with, another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including
attorneys’ fees) and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or
proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the Registrant’s best interests, except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to the Registrant, unless and only to the extent
that the Court of Chancery of Delaware determines that, despite such adjudication but in view of all of the circumstances, he or
she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been
successful, on the merits or otherwise, he or she will be indemnified by the Registrant against all expenses (including attorneys’
fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If the Registrant does not
assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
The Registrant has
entered into indemnification agreements with its directors and certain of its officers, in addition to the indemnification provided
for in its second amended and restated certificate of incorporation (as amended), and intends to enter into indemnification agreements
with any new directors and executive officers in the future. The Registrant has purchased and intends to maintain insurance on
behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him or her and
incurred by him or her in any such capacity, subject to certain exclusions.