proceeding against them as to which they could be indemnified. The Company has also purchased and expects to maintain standard insurance policies that provide coverage (1) to its directors
and officers against loss arising from claims made by reason of breach of duty or other wrongful act and (2) to it with respect to indemnification payments the Company may make to such officers and directors.
Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director,
officer, employee, or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys fees), judgments, fines and amounts paid in settlements actually and
reasonably incurred by the person in connection with a threatened, pending, or completed action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if 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 any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions
brought by or in the right of the corporation, indemnification is limited to expenses (including attorneys fees) actually and reasonably incurred by the person in connection with defense or settlement of such action or suit and 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 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, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper. In addition, to the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit, or proceeding described above (or claim, issue, or matter therein), such
person shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by such person in connection therewith. Expenses (including attorneys fees) incurred by an officer or director in defending any
civil, criminal, administrative, or investigative action, suit, or proceeding may be advanced by the corporation upon receipt of an undertaking by such person to repay such amount if it is ultimately determined that such person is not entitled to
indemnification by the corporation under Section 145 of the General Corporation Law of the State of Delaware.
The Companys
amended and restated certificate of incorporation provides that the Company will, to the fullest extent permitted by law, indemnify any person made or threatened to be made a party to an action or proceeding by reason of the fact that he or she (or
his or her testators or intestate) is or was a director or officer of the Company or serves or served at any other corporation, partnership, joint venture, trust or other enterprise in a similar capacity or as an employee or agent at the
Companys request, including service with respect to employee benefit plans maintained or sponsored by the Company, against expenses (including attorneys), judgments, fines, penalties and amounts paid in settlement incurred in connection
with the investigation, preparation to defend, or defense of such action, suit, proceeding, or claim. However, the Company is not required to indemnify or advance expenses in connection with any action, suit, proceeding, claim, or counterclaim
initiated by the Company or on behalf of it. The Companys amended and restated bylaws provide that it will indemnify and hold harmless each person who was or is a party or threatened to be made a party to any action, suit, or proceeding by
reason of the fact that he or she is or was a director or officer of the Company, or is or was serving at its request in a similar capacity of another corporation, partnership, joint venture, trust or other enterprise, including service with respect
to employee benefit plans (whether the basis of such action, suit, or proceeding is an action in an official capacity as a director or officer or in any other capacity while serving as a director of officer) to the fullest extent authorized by the
Delaware General Corporation Law against all expense, liability and loss (including attorneys fees, judgments, fines, ERISA excise taxes, or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in connection
with such action, suit or proceeding, and this indemnification continues after such person has ceased to be an officer or director and inures to the benefit of such persons heirs, executors and administrators. The indemnification rights also
include the right generally to be advanced expenses, subject to any undertaking required under Delaware General Corporation Law, and the right generally to recover expenses to enforce an indemnification claim or to defend specified suits with
respect to advances of indemnification expenses.
The indemnification rights set forth above are not exclusive of any other right which an
indemnified person may have or hereafter acquire under any statute, provision of the Companys amended and restated certificate of incorporation, amended and restated bylaws, agreement, vote of stockholders or disinterested directors or
otherwise.
Item 7.
|
EXEMPTION FROM REGISTRATION CLAIMED
|
Not applicable.
Pursuant to the exceptions provided in Item 8 of Form
S-8
to the exhibits required by Item 601 of
Regulation
S-K,
the Company has submitted or will submit the Plan and any amendments thereto to the Internal Revenue Service (IRS) in a timely manner and has made or will make all changes required
by the IRS in order to qualify the Plan under Section 401 of the Internal Revenue Code of 1986, as amended.
The Exhibits to this
Registration Statement are listed in the Exhibit Index immediately preceding the signature pages of this Registration Statement.