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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. |
Similarly, the Registrants officers who at the time of an act or omission as to which liability is asserted consented to or are deemed to have consented
to certain service of process rules under Delaware law will not be personally liable to the Registrant or the Registrants stockholders for monetary damages for any breach of fiduciary duties as officers, except for liability in connection
with:
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any breach of their duty of loyalty to the Registrant or the Registrants 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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any transaction from which they derived an improper personal benefit; or |
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any action by or in the right of the corporation. |
Any amendment, repeal or elimination 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, repeal or elimination. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors or officers of corporations, then the personal
liability of the Registrants directors and officers will be further limited to the greatest extent permitted by the Delaware General Corporation Law.
In addition, the Registrants bylaws provide that the Registrant will indemnify its directors and officers, and may indemnify its employees, agents and
any other persons, to the fullest extent permitted by the Delaware General Corporation Law. The Registrants 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.
Further, the Registrant has entered into indemnification agreements with each of
its directors and executive officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements require the Registrant to, among other things, indemnify the
Registrants directors and executive officers against liabilities that may arise by reason of their status or service. These indemnification agreements also generally require the Registrant to advance all expenses reasonably and actually
incurred by the Registrants directors and executive officers in investigating or defending any such action, suit or proceeding. The Registrant believe that these agreements are necessary to attract and retain qualified individuals to serve as
directors and executive officers.
The limitation of liability and indemnification provisions in the Registrants certificate of incorporation,
bylaws and indemnification agreements may discourage stockholders from bringing a lawsuit against the Registrants directors and officers for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against
the Registrants directors and officers, even though an action, if successful, might benefit the Registrant and other stockholders. Further, a stockholders investment may be adversely affected to the extent that the Registrant pays the
costs of settlement and damage awards against the Registrants directors and officers as required by these indemnification provisions.
The
Registrant has obtained insurance policies under which, subject to the limitations of the policies, coverage is provided to the Registrants directors and officers against loss arising from claims made by reason of breach of fiduciary duty or
other wrongful acts as a director or officer, including claims relating to public securities matters, and to the Registrant with respect to payments that may be made by the Registrant to its directors and officers pursuant to the Registrants
indemnification obligations or otherwise as a matter of law.
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