Item 6.
Indemnification
of Directors and Officers
.
The
Registrant’s Restated Certificate of Incorporation contains a provision
providing that no director or officer of the Registrant shall be personally
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director or officer except for breach of the director’s or
officer’s duty of loyalty to the Registrant or its stockholders, acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, unlawful payment of dividends, unlawful stock
redemptions or repurchases and transactions from which the director or officer
derived an improper personal benefit.
The
Restated Certificate of Incorporation also provides that the Registrant shall
indemnify directors and officers of the Registrant, its consolidated
subsidiaries and certain other related entities generally in the same manner
and to the extent permitted by the Delaware General Corporation Law, as more
specifically provided in the Restated Bylaws of the Registrant. The Restated
Bylaws provide for indemnification and permit the advancement of expenses by
the Registrant generally in the same manner and to the extent permitted by the
Delaware General Corporation Law, subject to compliance with certain
requirements and procedures specified in the Restated Bylaws. In general, the
Restated Bylaws require that any person seeking indemnification must provide
the Registrant with sufficient documentation as described in the Restated
Bylaws and, if an undertaking to return advances is required, to deliver an
undertaking in the form prescribed by the Registrant and provide security for
such undertaking if considered necessary by the Registrant. In addition, the
Restated Bylaws specify that, except to the extent required by law, the Registrant
does not intend to provide indemnification to persons under certain
circumstances, such as where the person was not acting in the interests of the
Registrant or was otherwise involved in a crime or tort against the Registrant.
Under
the Delaware General Corporation Law, directors and officers, as well as other
employees or persons, may be indemnified against judgments, fines and amounts
paid in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation - a “derivative action”), and against
expenses (including attorneys’ fees) in any action (including a derivative
action), 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. However, in the case of a derivative
action, a person cannot be indemnified for expenses in respect of any matter as
to which the person is adjudged to be liable to the corporation unless and to
the extent a court determines that such person is fairly and reasonably
entitled to indemnity for such expenses.
The
Delaware General Corporation Law also provides that, to the extent a director,
officer, employee or agent of a corporation has been successful on the merits
or otherwise in defense of any action or matter, the corporation must indemnify
such party against expenses (including attorneys’ fees) actually and reasonably
incurred by such party in connection therewith.
Expenses
incurred by a director or officer in defending any action may be paid by a
Delaware corporation in advance of the final disposition of the action upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount if it is ultimately determined that such party is not entitled to
be indemnified by the corporation.
The
Delaware General Corporation Law provides that the indemnification and
advancement of expenses provided thereby are not exclusive of any other rights
granted by bylaws, agreements or otherwise, and provides that a corporation
shall have the power to purchase and maintain insurance on behalf of any person,
whether or not the corporation would have the power to indemnify such person
under the Delaware General Corporation Law.
The
Registrant has directors’ and officers’ liability insurance which provides,
subject to certain policy limits, deductible amounts and exclusions, coverage
for all persons who have been, are or may in the future be, directors or
officers of the Registrant, against amounts which such persons must pay
resulting from claims against them by reason of their being such directors or officers
during the policy period for certain breaches of duty, omissions or other acts
done or wrongfully attempted or alleged.