Item
6.
Indemnification
of Directors
and Officers
Section
145 of the Delaware General Corporation Law (the
“DGCL”
) provides that
a
corporation may indemnify its directors and officers, as well as other
employees
and individuals (each an
“Indemnified Party
,
”
and collectively,
“Indemnified Parties”
),
against expenses (including attorneys’ fees), judgments, fines, and amounts paid
in settlement in connection with specified actions, suits, or proceedings,
whether civil, criminal, administrative, or investigative, other than in
connection with actions by or in the right of the corporation (a
“derivative action”
), if an
Indemnified Party acted in good faith and in a manner such Indemnified
Party
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 that his or her conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except
that a
corporation may only indemnify an Indemnified Party for expenses (including
attorneys’ fees) incurred in connection with the defense or settlement of such
derivative action. Additionally, in the context of a derivative
action, DGCL Section 145 requires court approval before there can be any
indemnification where an Indemnified Party has been found liable to the
corporation. The statute provides that it is not exclusive of other
indemnification arrangements that may be granted pursuant to a corporation’s
by-laws, agreement, vote of stockholders or disinterested directors, or
otherwise.
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 for (i) any breach of
the
director’s duty of loyalty to the corporation or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or
a knowing
violation of law, (iii) any willful or negligent declaration of an unlawful
dividend, stock purchase or redemption, or (iv) any transaction from which
the
director derived an improper personal benefit.
Our
Certificate of Incorporation and By-Laws provide that our directors and
officers
shall not, to the fullest extent permitted by the DGCL, be liable to us
or any
of our stockholders for monetary damages for any breach of fiduciary duty
as a
director or officer, as the case may be. Our Certificate of
Incorporation and By-Laws also provide that if the DGCL is amended to permit
further elimination or limitation of the personal liability of directors
and
officers, then the liability of our directors and officers shall be eliminated
or limited to the fullest extent permitted by the DGCL, as so
amended.
We
have
entered into agreements to indemnify our directors and officers in addition
to
the indemnification provided for in our Certificate of Incorporation and
By-Laws. These agreements, among other things, indemnify our
directors and officers to the fullest extent permitted by the DGCL or other
applicable state law for certain losses and expenses, including attorney’s fees,
liabilities, judgments, fines and settlement amounts incurred by such person
arising out of or in connection with such person’s service as a director or
officer of us or one of our affiliates.
We
maintain directors’ and officers’ liability insurance, under which our directors
and officers are insured, within the limits and subject to the limitations
of
the policies, against certain expenses in connection with the defense of,
and
certain liabilities which might be imposed as a result of, actions, suits
or
proceedings to which our directors and officers are parties by reason of
being
or having been our directors or officers, as the case may be.