Item 6. Indemnification of Directors and
Officers.
Section
145(a) of the Delaware General Corporation Law 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, 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 Delaware General Corporation Law 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 which the Court of Chancery or other
adjudicating court shall deem proper.
Section
145(g) of the Delaware General Corporation Law 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 Delaware General Corporation Law.
Article VI of our certificate of incorporation, as
amended (the “Charter”), provides that no director of our Company
shall be personally liable to us or our stockholders for monetary
damages for any breach of fiduciary duty as a director, except for
liability (1) for any breach of the director’s duty of
loyalty to us or our stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (3) in respect of unlawful dividend payments or
stock redemptions or repurchases, or (4) for any transaction from
which the director derived an improper personal benefit. In
addition, our Charter provides that if the Delaware General
Corporation Law is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a
director of our Company shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law,
as so amended.
Article
VI of the Charter further provides that any repeal or modification
of such article by our stockholders or amendment to the Delaware
General Corporation Law will not adversely affect any right or
protection existing at the time of such repeal or modification with
respect to any acts or omissions occurring before such repeal or
modification of a director serving at the time of such repeal or
modification.
Article IX of our bylaws (the
“Bylaws”), provides that that our Company shall
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, whether civil, criminal, administrative or
investigative (other than an action by, or in the right of our
Company) by reason of the fact that he is or was a director,
officer, employee or agent of our Company, or is or was serving at
the request of our Company as a director, officer, employee or
agent of any other corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorney’s
fees), judgments, fines, amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding, including any appeal thereof, if he acted in good faith
in a manner he reasonably believed to be in, or not opposed to the
best interests of our Company, and with respect to any criminal
action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. The indemnification provided by the Bylaws
are in addition to the indemnification rights provided pursuant to
the Delaware General Corporation Law, and are not exclusive of any
other rights to which any person seeking indemnification may he
entitled.
Our
Company has obtained directors’ and officers’ liability
insurance which insures against certain liabilities that directors
and officers of our Company and subsidiaries, may, in such
capacities, incur.
Our
Company has entered into employee agreements with our executive
officers which contain indemnification provisions. These agreements
provide that our Company will indemnify each of our executive
officers to the fullest extent permitted by law and by our Charter
or Bylaws.