Item 6. Indemnification.
The Company is a Delaware corporation. Section 145 of the Delaware General Corporation Law, or the DGCL, grants each corporation organized thereunder 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, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that 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), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the 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 the person’s conduct was unlawful.
Section 102(b)(7) of the DGCL enables a corporation in its certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for violations of the directors’ fiduciary duty of care, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv) for any transaction from which a director derived an improper personal benefit. Article Seventh of the Company’s Amended and Restated Certificate of Incorporation provides that, except as otherwise provided by the DGCL, no director of the Company shall be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director.
Article Eighth of the Company’s Amended and Restated Certificate of Incorporation provides that the Company, to the maximum extent permitted under the DGCL, shall indemnify any current or former director or officer of the Company against all liability, claims, damages, costs and loss suffered and expenses (including attorneys’ fees), judgments, fines, penalties and amounts paid in settlement or otherwise incurred (and not otherwise recovered) in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Company, or is or was serving as an officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including an employee benefit plan). However, this provision does not require the Company to indemnify any person in connection with any proceeding initiated by or on behalf of that person unless the action was authorized by the Board of Directors. A person seeking this indemnification will be deemed to have met the standard of conduct
required for such indemnification unless the contrary is established by a final, non-appealable judgment. The Company is required to advance and pay expenses incurred to an indemnified person in the investigation, preparation to defend or defense of or otherwise participating in any proceeding in advance of the final disposition of such proceeding, if the person provides an unsecured written undertaking to repay such amounts if it is ultimately determined that the person is not entitled to indemnification and provides adequate documentation reflecting such expenses. Article Eighth does not prohibit the Company from providing indemnification to employees and agents, if so determined by the Board of Directors, to the same extent as provided on a mandatory basis to directors and officers of the Company.
Article 5 of the Company’s Bylaws provides for mandatory indemnification (including advancement of expenses) of directors and officers on terms parallel to those in Article Eighth of the Amended and Restated Certificate of Incorporation, except that Article 5 provides for mandatory indemnification of an indemnified person who is or was serving at the Company’s request as a director, officer, employee, member of the governing body, general partner, member, or agent or fiduciary of, or in any other capacity for, another corporation, partnership, joint venture, trust or other enterprise.