Item 5. Interests of Named Experts and Counsel.
Wilmer Cutler Pickering Hale and Dorr LLP has opined as to the
legality of the securities being offered by this registration
statement.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (“DGCL”) provides, generally, that a corporation shall
have the power to 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 (except actions by or in the
right of the corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation
against all expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person 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. A
corporation may similarly indemnify such person for expenses
actually and reasonably incurred by such person in connection with
the defense or settlement of any action or suit by or in the right
of the corporation, provided that such person 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, in the case
of claims, issues and matters as to which such person shall have
been adjudged liable to the corporation, provided that a
court shall have determined, upon application, that, despite the
adjudication of liability but in view of all of the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Section 102(b)(7) of the DGCL provides, generally, that the
registrant’s certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the
corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, provided that such provision
may not eliminate or limit the liability of a director (i) for
any breach of the director’s duty of loyalty to the corporation or
its shareholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of
law, (iii) under section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal
benefit. No such provision may eliminate or limit the liability of
a director for any act or omission occurring prior to the date when
such provision became effective.
The registrant’s certificate of incorporation provides that the
registrant will indemnify each person who was or is a party or
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 registrant) by reason of the fact that he or she
is or was, or has agreed to become, a director or officer, or is or
was serving, or has agreed to serve, at the registrant’s request as
a director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (all such persons being referred
to as an “Indemnitee”), or by reason of any action alleged to have
been taken or omitted in such capacity, against all expenses
(including attorneys’ fees), liabilities, losses, judgments, fines
and amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding and any appeal
therefrom, if such Indemnitee acted in good faith and in a manner
he or she reasonably believed to be in, or not opposed to, the
registrant’s best interests, and, with respect to any criminal
action or proceeding, he or she had no reasonable cause to believe
his or her conduct was unlawful. The registrant’s certificate of
incorporation provides that the registrant will indemnify any
Indemnitee who was or is a party or threatened to be made a party
to any threatened, pending or completed action or suit by or in the
right of the registrant to procure a judgment in its favor by
reason of the fact that the Indemnitee is or was, or has agreed to
become, a director or officer, or is or was serving, or has agreed
to serve, at its request as a director, officer, partner, employee
or trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys’ fees) and, to
the extent permitted by law, amounts paid in settlement actually
and reasonably incurred in connection with such action, suit or
proceeding, and any appeal therefrom, if the Indemnitee acted in
good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the registrant’s best interests, except that no
indemnification shall be made with respect to any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the registrant, unless a court determines that, despite
such adjudication but in view of all of the circumstances, he or
she is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that any Indemnitee
has been successful, on the merits or otherwise, he or she will be
indemnified by the registrant against all expenses (including
attorneys’ fees) actually and reasonably incurred in connection
therewith. Expenses must be advanced to an Indemnitee under certain
circumstances.