The validity of the issuance of the shares of the Registrant’s common stock has been passed upon by Wilson Sonsini Goodrich & Rosati, Professional
Corporation (“WSGR”). Certain members of, and persons associated with, WSGR own less than one percent of the Registrant’s common stock.
Item 6. |
Indemnification of Directors and Officers.
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Section 145 of the General Corporation Law of the State of Delaware (“DGCL”) generally empowers a corporation to indemnify its directors and officers,
provided that the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the corporation’s best interests, and, with respect to any criminal action, had no reasonable cause to believe the person’s
actions were unlawful, and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers. The DGCL further provides that the indemnification permitted thereunder shall not be deemed exclusive of
any other rights to which the directors and officers may be entitled under the corporation’s bylaws, any agreement, a vote of stockholders or disinterested shareholders or otherwise.
The amended and restated certificate of incorporation of the Registrant generally provides for the indemnification of the Registrant’s directors to the
fullest extent permitted under the DGCL. In addition, the amended and restated bylaws of the Registrant require, subject to certain limitations, the Registrant to fully 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) by reason of the fact that such person is or was a director or officer of the Registrant, or is or was a director or
officer of the Registrant serving at the Registrant’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, to the fullest extent permitted by applicable law.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director or officer of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except (i) with respect to a director or officer, for any breach of the director’s or officer’s duty of loyalty to
the corporation or its stockholders, (ii) with respect to a director or officer, for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) with respect to a director, for payments of
unlawful dividends or unlawful stock repurchases or redemptions, (iv) with respect to a director or officer, for any transaction from which the director or officer derived an improper personal benefit or (v) with respect to an officer, in any
action by or in the right of the corporation. The Registrant’s amended and restated certificate of incorporation provides that the Registrant’s directors shall not be personally liable to it or its stockholders for monetary damages for breach of
fiduciary duty as a director and that if the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Registrant’s directors shall be eliminated or limited to the
fullest extent permitted by the DGCL, as so amended.
Section 174 of the DGCL provides, among other things, that a director who willfully or negligently approves an unlawful payment of dividends or an unlawful
stock repurchase or redemption may be held liable, at any time within 6 years after paying the unlawful dividend or after the unlawful stock repurchase or redemption, to the full amount of the dividend unlawfully paid, or to the full amount
unlawfully paid for the repurchase or redemption of the corporation’s stock, with interest from the time such liability accrued. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability
by causing his or her dissent to such actions to be entered in the books containing minutes of the proceedings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful
acts.
As permitted by the DGCL, the Registrant has entered, and intends to continue to enter, into separate indemnification agreements with each of the Registrant’s
directors and executive officers that require the Registrant, among other things, to indemnify them against certain liabilities that may arise by reason of their status as directors or executive officers.
The Registrant expects to obtain and maintain insurance policies under which its directors and officers are insured, within the limits and subject to the
limitations of those policies, against certain expenses in connection with the defense of, and certain liabilities that might be imposed as a result of, actions, suits or proceedings to which they are parties by reason of being or having been
directors or officers. The coverage provided by these policies may apply whether or not the Registrant would have the power to indemnify such person against such liability under the provisions of the DGCL.
These indemnification provisions and the indemnification agreements entered into between the Registrant and the Registrant’s executive officers and directors
may be sufficiently broad to permit indemnification of the Registrant’s executive officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.