| Item 5. |
Interests of Named Experts and Counsel. |
The validity of the Common Stock to which this Registration Statement relates is being passed upon for the Registrant by Kristin L. Kruska
Esq., Corporate Vice President, Transactions, Corporate & Securities Law and Secretary, in the Registrant’s Law Department. Ms. Kruska is eligible to participate in various employee benefit plans of the Registrant, including the
Plan, and beneficially owns, or has rights to acquire, less than one percent of the Registrant’s outstanding shares of Common Stock.
| Item 6. |
Indemnification of Directors and Officers. |
The following description of our indemnification of directors and officers and of certain provisions of our restated certificate of
incorporation (our “charter”), our amended and restated bylaws (our “bylaws”), and of certain provisions of Delaware law do not purport to be complete and are subject to and qualified in their entirety by
reference to the charter and the bylaws and the Delaware General Corporate Law (the “DGCL”).
Section 145 of the
DGCL makes provision for the indemnification of officers and directors of corporations in terms sufficiently broad to indemnify the officers and directors of the Registrant under certain circumstances from liabilities (including reimbursement of
expenses incurred) arising under the Securities Act. 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, as applicable, except for liability (i) for any breach of the director’s or officer’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) with respect to directors only, in respect of certain unlawful dividend payments or stock
redemptions or repurchases under Section 174 of the DGCL, (iv) for any transaction from which the director or officer derived an improper personal benefit, or (v) with respect to officers only, in any action by or in the right of the
corporation.
To the fullest extent permitted by the DGCL, the Registrant’s charter provides that no director or officer shall be
personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable, except in the certain instances enumerated above pursuant to Section 102(b)(7) of the DGCL.
Furthermore, if the DGCL is amended to further eliminate or limit the liability of a director or officer, then the charter provides that a director or officer shall not be liable to fullest extent permitted by the amended DGCL.
The charter provides that the Registrant shall indemnify and hold harmless any person who was or is a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she is or was a director or officer of the Registrant or is or was
serving (at such time as such person is or was a director or officer of the corporation) at the request of the Registrant as a director, officer, employee or agent of any other corporation or enterprise (including service with respect to an employee
benefit plan), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to such person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Registrant
generally shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Registrant.
The charter also provides that expenses incurred by an officer or director of the Registrant (acting in his or her capacity as such) in
defending any such action, suit or proceeding shall be paid by the Registrant in advance of its final disposition, provided that if required by the DGCL such expenses shall be advanced only upon delivery to the Registrant of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Registrant.
