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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 DGCL; 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 DGCL 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 DGCL.
In addition, the Registrants amended and restated bylaws
(Bylaws) 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 he or she is or was 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 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 Bylaws will 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 DGCL. These indemnification agreements require the Registrant, among other things, to indemnify its directors and executive officers against liabilities that may arise by reason of their
status or service. These indemnification agreements also require the Registrant to advance all expenses incurred by the directors and executive officers in investigating or defending any such action, suit, or proceeding. The Registrant believes 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 Charter, Bylaws, and the indemnification agreements that the Registrant has entered into with its directors and executive officers may discourage stockholders from bringing a
lawsuit against the Registrants directors and executive officers for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against the Registrants directors and executive 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 directors and
executive officers as required by these indemnification provisions. At present, other than as disclosed in the Annual Report, the Registrant is not aware of any pending litigation or proceeding involving any person who is or was one of the
Registrants directors, officers, employees, or other agents or is or was serving at its request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, for which
indemnification is sought, and the Registrant is not aware of any threatened litigation that may result in claims for indemnification.
The Registrant has obtained insurance policies under which, subject to the limitations of the policies, coverage is provided to the
Registrants directors and executive officers against loss 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.
Certain of the Registrants non-employee directors may, through their relationships with their
employers, be insured and/or indemnified against certain liabilities incurred in their capacity as members of the Registrants board of directors.
Item 7. Exemption from Registration Claimed.
Not applicable.