Item 6.
Indemnification of Directors and Officers.
Section 145 of the
General Corporation Law of the State of Delaware provides as follows:
“A corporation shall have the power
to 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 (other than an action by or in the right of the corporation)
by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or proceeding if the person acted in good faith and
in a manner the person reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
A corporation shall have the power
to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including
attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests
of the corporation and except that 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 the
court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but
in view of all 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.”
The Registrant’s
second amended and restated certificate of incorporation provides that it will indemnify each person who was or is a party or threatened
to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or
investigative (other than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to
become, our director or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a director,
officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise
(all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted
in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in
good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, and, with respect to
any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.
The Registrant’s
second amended and restated certificate of incorporation also provides that it will indemnify any Indemnitee who was or is a party
to an action or suit by or in the right of the Registrant to procure a judgment in the Registrant’s favor by reason of the
fact that the Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve,
at the Registrant’s request as a director, officer or trustee or, or in a similar capacity with, another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys’ fees) and amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the Registrant’s best interests, except that 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 Registrant, unless and
only to the extent that the Court of Chancery of Delaware determines that, despite such adjudication but in view of all of the
circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any
Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the Registrant against all expenses
(including attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith.
If the Registrant does not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
The Registrant
has entered into indemnification agreements with its directors and certain of its officers, in addition to the indemnification
provided for in its second amended and restated certificate of incorporation and amended and restated by-laws, and intends to enter
into indemnification agreements with any new directors and executive officers in the future. The Registrant has purchased and intends
to maintain insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted
against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
Item 9.
Undertakings.
(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;
(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 and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement.
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement;
Provided however, that:
A. Paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13
or section 15(d)of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement; and
B. Paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission
by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to
Rule
424(b) that is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.