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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of
the Delaware General Corporation Law; or |
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any transaction from which they derived an improper personal benefit. |
Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission, or claim that
occurred or arose prior to that amendment or repeal. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of the Registrants
directors will be further limited to the greatest extent permitted by the Delaware General Corporation Law.
In addition, the Registrants amended
and restated bylaws provide that the Registrant will indemnify, to the fullest extent permitted by law, any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is
or was one of the Registrants directors or officers or is or was serving at the Registrants request as a director or officer of another corporation, partnership, joint venture, trust, or other enterprise. The Registrants amended
and restated bylaws provide that the Registrant may indemnify to the fullest extent permitted by law any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is or
was one of the Registrants employees or agents or is or was serving at the Registrants request as an employee or agent of another corporation, partnership, joint venture, trust, or other enterprise. The Registrants amended and
restated bylaws also provide that the Registrant must advance expenses incurred by or on behalf of a director or officer in advance of the final disposition of any action or proceeding, subject to limited exceptions.
Further, the Registrant has entered into indemnification agreements with each of its directors and executive officers that may be broader than the specific
indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements require the Registrant, among other things, to indemnify its directors and executive officers against liabilities that may arise by reason
of their status or service. These indemnification agreements also require the Registrant to advance all expenses incurred by the directors and executive officers in investigating or defending any such action, suit, or proceeding. The Registrant
believes that these agreements are necessary to attract and retain qualified individuals to serve as directors and executive officers.
The limitation of
liability and indemnification provisions in the Registrants amended and restated certificate of incorporation, amended and restated bylaws, and the indemnification agreements that the Registrant has entered into with its directors and
executive officers may discourage stockholders from bringing a lawsuit against the Registrants directors and executive officers for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against the
Registrants directors and executive officers, even though an action, if successful, might benefit the Registrant and other stockholders. Further, a stockholders investment may be adversely affected to the extent that the Registrant pays
the costs of settlement and damage awards against directors and executive officers as required by these indemnification provisions. At present, the Registrant is not aware of any pending litigation or proceeding involving any person who is or was
one of the Registrants directors, officers, employees, or other agents or is or was serving at its request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, for which
indemnification is sought, and the Registrant is not aware of any threatened litigation that may result in claims for indemnification.
The Registrant has
obtained insurance policies under which, subject to the limitations of the policies, coverage is provided to the Registrants directors and executive officers against loss arising from claims made by reason of breach of fiduciary duty or other
wrongful acts as a director or executive officer, including claims relating to public securities matters, and to the Registrant with respect to payments that may be made by the Registrant to these directors and executive officers pursuant to its
indemnification obligations or otherwise as a matter of law.
Certain of the Registrants non-employee
directors may, through their relationships with their employers, be insured and/or indemnified against certain liabilities incurred in their capacity as members of the Registrants Board of Directors.