arising from breaches of fiduciary duty by a director or officer. The provision does not, however, eliminate or limit the personal liability of a director or officer (i) for any breach of such director’s or officer’s duty of loyalty to the Company or its stockholders, (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 making directors personally liable, under a negligence standard, for unlawful dividends or unlawful stock purchases or redemptions, or (iv) for any transaction from which the director or officer is found by a court of law to have derived an improper personal benefit. This provision offers persons who serve as directors or officers of the Company protection against awards of monetary damages resulting from breaches of their duty of care (except as indicated above). As a result of this provision, the ability of the Company or a stockholder thereof to successfully prosecute an action against a director or officer for a breach of his or her duty of care is limited. However, the provision does not affect the availability of equitable remedies such as an injunction or rescission based upon a director’s or officer’s breach of his or her duty of care or liabilities under other laws, such as federal securities laws.
Section 145 of the DGCL grants corporations the right to indemnify their directors, officers, employees and agents in accordance with the provisions therein set forth. Article Seventh of the Company’s Restated Certificate of Incorporation and Article Seven of the Company’s Amended and Restated Bylaws provide for mandatory indemnification rights, subject to limited exceptions, to any person, who, by reason of the fact that he or she is a director or officer of the Company, or at the request of the Company was serving as a director, officer, employee, or agent of another entity, is involved in a legal proceeding of any nature. Such indemnification rights include reimbursement for expenses incurred by such director, officer, employee, or agent in advance of the final disposition of such proceeding in accordance with the applicable provisions of the DGCL.
The Company has entered into agreements with all of its directors and its executive officers pursuant to which it has agreed to indemnify such directors and executive officers against liability incurred by them by reason of their services as a director or executive officer to the fullest extent allowable under applicable law. The described provisions of the Company’s Restated Certificate of Incorporation, Amended and Restated Bylaws and indemnification agreements may be sufficiently broad to permit indemnification of directors and officers for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933, as amended.
The Company has in place a policy of directors and officers liability insurance that insures directors and officers against the cost of defense, settlement or payment of a judgment under certain circumstances, and insures the Company in certain circumstances if it is required to make indemnification payments to its directors and officers.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
See the Exhibit Index, which is incorporated herein by reference.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
| | (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| | (ii) | To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume |
