The legality of the shares of Common Stock being offered under this Registration Statement has been passed upon for the Registrant by
Mr. David G. Kabbes, Vice President, General Counsel and Secretary of the Registrant, who owns or has rights to acquire an aggregate of less than 1% of the Common Stock.
Item 6. |
Indemnification of Directors and Officers. |
Section 145 of the General Corporation Law of the State of Delaware (the DGCL) provides that a corporation may
indemnify directors, officers, employees and agents against expenses, including attorneys fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred in connection with specified actions, suits, and proceedings,
other than a derivative action by or in the right of the corporation, if they acted in good faith and in a manner they 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 their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to expenses, including attorneys fees, actually and
reasonably incurred in connection with the defense or settlement of such action and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be granted by a corporations certificate of incorporation, bylaws, disinterested director vote, stockholder vote, agreement, or otherwise.
The Registrants Amended and Restated Bylaws (the Bylaws) provide that (i) the Registrant will indemnify
its directors and officers, and may indemnify its other employees, to the fullest extent authorized by law, subject to limited exceptions; (ii) the Registrant will advance expenses incurred by its directors and officers, and may advance
expenses incurred by its other employees, in connection with a legal proceeding to the fullest extent authorized by the law and the Bylaws, subject to limited exceptions; and (iii) the rights provided by the Bylaws in respect of indemnification
and the advancement of expenses are not exclusive.
In addition, Section 102(b)(7) of the DGCL permits Delaware corporations to
include a provision in their certificates of incorporation eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such
provisions shall not eliminate or limit the liability of a director: (i) for any breach of the directors duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL; or (iv) for any transactions from which the director derived an improper personal benefit. The Registrants Restated Certificate of
Incorporation (the Certificate of Incorporation) includes such a provision.
The Registrant has also purchased a
policy of directors and officers liability insurance that insures its directors and officers against the cost of defense, settlement or payment of a judgment in some circumstances.
The Registrant believes that the provisions in the Certificate of Incorporation, the Bylaws and the indemnification policies are necessary to
attract and retain qualified persons as directors and executive officers.
2