Item
6.
Indemnification
of Directors and Officers.
The
Registrant’s Certificate of Incorporation, as amended, provides that to the
fullest extent permitted by Delaware law, its directors are not personally
liable to the Registrant or its stockholders for monetary damages for breach
of
their fiduciary duties. The effect of this provision of the Registrant’s
Certificate of Incorporation, as amended, is to eliminate its right and its
stockholders’ rights (through stockholders’ derivative suits on behalf of the
Registrant) to recover damages against a director for breach of the fiduciary
duty of care as a director (including breaches resulting from negligent or
grossly negligent behavior), except under certain situations defined by statute.
The Registrant believes that the indemnification provisions in its Certificate
of Incorporation, as amended, are necessary to attract and retain qualified
persons as directors.
Section 102
of the Delaware General Corporation Law allows a corporation to eliminate the
personal liability of directors of a corporation to the corporation or its
stockholders for monetary damages for a breach of fiduciary duty as a director,
except where the director breached his duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly violated a law, authorized
the payment of a dividend or approved a stock repurchase in violation of the
DGCL or obtained an improper personal benefit.
Section 145
of the DGCL provides, among other things, that a company may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the company) by reason of the fact that the person
is or was a director, officer, agent or employee of the company or is or was
serving at the company’s request as a director, officer, agent, or employee of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys’ fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection
with
such action, suit or proceeding. The power to indemnify applies (a) if such
person is successful on the merits or otherwise in defense of any action, suit
or proceeding, or (b) if such person acted in good faith and in a manner he
or she reasonably believed to be in the best interest, or not opposed to the
best interest, of the company, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The power to indemnify applies to actions brought by or in the right of the
company as well, but only to the extent of defense expenses (including
attorneys’ fees but excluding amounts paid in settlement) actually and
reasonably incurred and not to any satisfaction of judgment or settlement of
the
claim itself, and with the further limitation that in such actions no
indemnification shall be made in the event of any adjudication of negligence
or
misconduct in the performance of his or her duties to the company, unless the
court believes that in the light of all the circumstances indemnification should
apply.
Section 174
of the DGCL provides, among other things, that a director, who willfully or
negligently approves of an unlawful payment of dividends or an unlawful stock
purchase or redemption, may be held liable for such actions. A director who
was
either absent when the unlawful actions were approved or dissented at the time
may avoid liability by causing his or her dissent to such actions to be entered
in the books containing the minutes of the meetings of the board of directors
at
the time such action occurred or immediately after such absent director receives
notice of the unlawful acts.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to the Registrant’s directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.