Item
6. Indemnification of Directors and Officers
Section 145(a)
of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party to or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), because he or she is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent 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,
if he or she acted in good faith and in a manner he or she 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 his or her conduct
was unlawful.
Section 145(b)
of the DGCL provides, in general, that a corporation 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 or suit by or in the right of the corporation to procure a judgment in
its favor because the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection
with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to
any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view
of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses that the Court
of Chancery or other adjudicating court shall deem proper.
Section 145(g)
of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether
or not the corporation would have the power to indemnify the person against such liability under Section 145 of the DGCL.
Additionally,
our Second Amended and Restated Certificate of Incorporation eliminates our directors’ liability to the fullest extent permitted
under the DGCL. The DGCL provides that directors of a corporation will not be personally liable for monetary damages for breach
of their fiduciary duties as directors, except for liability:
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for
any transaction from which the director derives an improper personal benefit;
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for
any act or omission not in good faith or that involves intentional misconduct or a knowing
violation of law;
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for
any unlawful payment of dividends or redemption of shares; or
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for
any breach of a director’s duty of loyalty to the corporation or its stockholders.
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If
the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the
liability of the Company’s directors will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
These
provisions do not affect a director’s responsibilities under any other law, such as the federal securities laws or state
or federal environmental laws.
In
addition, we have entered into separate indemnification agreements with our directors and officers. These agreements, among other
things, require us to indemnify our directors and officers for certain expenses, including attorneys’ fees, judgments, fines,
and settlement amounts incurred by a director or officer in any action or proceeding arising out of their services as one of our
directors or officers or any other company or enterprise to which the person provides services at our request.
We
maintain a directors’ and officers’ insurance policy pursuant to which our directors and officers are insured against
liability for actions taken in their capacities as directors and officers.