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Item 6.
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Indemnification of Directors and Officers.
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Section 145(a) of
the Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation may 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 such 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 such person in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he
or she 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 no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of
the DGCL provides that a Delaware corporation may 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 such person acted in any of the capacities set forth above, against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if he
or she acted under similar standards, except that no indemnification may be made in respect of 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 Delaware Court
of Chancery or the court in which such action or suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified for such expenses
which the court shall deem proper.
Section 145 of the
DGCL further provides that to the extent a former or current director, officer, employee or agent of a corporation has been successful
in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim,
issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by him or her in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; and that the corporation may purchase and maintain insurance
on behalf of a director, officer, employee or agent of the corporation against any liability asserted against him or her or incurred
by him or her in any such capacity or arising out of his or her status as such, whether or not the corporation would have the power
to indemnify him or her against such liabilities under Section 145.
Set forth below is Article XI
of the Company’s Amended and Restated Bylaws:
“ARTICLE XI
INDEMNIFICATION
Section 43.
Indemnification of Directors, Executive Officers, Other Officers, Employees and Other Agents.
(a)
Directors
and Officers.
The corporation shall indemnify its directors and officers to the fullest extent not prohibited by the DGCL
or any other applicable law;
provided, however,
that the corporation may modify the extent of such
indemnification by individual contracts with its directors and officers; and,
provided, further,
that
the corporation shall not be required to indemnify any director or officer in connection with any proceeding (or part thereof)
initiated by such person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized
by the Board of Directors of the corporation, (iii) such indemnification is provided by the corporation, in its sole discretion,
pursuant to the powers vested in the corporation under the DGCL or any other applicable law or (iv) such indemnification is required
to be made under subsection (d).
(b)
Employees
and Other Agents.
The corporation shall have power to indemnify its employees and other agents as set forth in the DGCL
or any other applicable law. The Board of Directors shall have the power to delegate the determination of whether indemnification
shall be given to any such person or other persons as the Board of Directors shall determine.
(c)
Expenses.
The
corporation shall advance to 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 he is
or was a director or officer, of the corporation, or is or was serving at the request of the corporation as a director or executive
officer of another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of the proceeding,
promptly following request therefor, all expenses incurred by any director or officer in connection with such proceeding upon receipt
of an undertaking by or on behalf of such person to repay said amounts if it should be determined ultimately that such person is
not entitled to be indemnified under this Section 43 or otherwise.
Notwithstanding
the foregoing, unless otherwise determined pursuant to paragraph (e) of this Section 43, no advance shall be made by the corporation
to an officer of the corporation (except by reason of the fact that such officer is or was a director of the corporation in which
event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative,
if a determination is reasonably and promptly made (i) by the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to the proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, that the facts known to the decision-making party at the
time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the corporation.
(d)
Enforcement.
Without
the necessity of entering into an express contract, all rights to indemnification and advances to directors and officers under
this Bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between
the corporation and the director or officer. Any right to indemnification or advances granted by this Section 43 to a director
or officer shall be enforceable by or on behalf of the person holding such right in any court of competent jurisdiction if (i)
the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety
(90) days of request therefor. The claimant in such enforcement action, if successful in whole or in part, shall be entitled to
be paid also the expense of prosecuting his claim. In connection with any claim for indemnification, the corporation shall be entitled
to raise as a defense to any such action that the claimant has not met the standards of conduct that make it permissible under
the DGCL or any other applicable law for the corporation to indemnify the claimant for the amount claimed. In connection with any
claim by an officer of the corporation (except in any action, suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that such executive officer is or was a director of the corporation) for advances, the corporation shall
be entitled to raise a defense as to any such action clear and convincing evidence that such person acted in bad faith or in a
manner that such person did not believe to be in or not opposed to the best interests of the corporation, or with respect to any
criminal action or proceeding that such person acted without reasonable cause to believe that his conduct was lawful. Neither the
failure of the corporation (including its Board of Directors, independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met
the applicable standard of conduct set forth in the DGCL or any other applicable law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard
of conduct. In any suit brought by a director or officer to enforce a right to indemnification or to an advancement of expenses
hereunder, the burden of proving that the director or officer is not entitled to be indemnified, or to such advancement of expenses,
under this Article XI or otherwise shall be on the corporation.
(e)
Non-Exclusivity
of Rights.
The rights conferred on any person by this Bylaw shall not be exclusive of any other right which such person
may have or hereafter acquire under any applicable statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another
capacity while holding office. The corporation is specifically authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting indemnification and advances, to the fullest extent not prohibited by the
DGCL, or by any other applicable law.
(f)
Survival
of Rights.
The rights conferred on any person by this Bylaw shall continue as to a person who has ceased to be a director,
officer, employee or other agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
(g)
Insurance.
To
the fullest extent permitted by the DGCL or any other applicable law, the corporation, upon approval by the Board of Directors,
may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this Section 43.
(h)
Amendments.
Any
repeal or modification of this Section 43 shall only be prospective and shall not affect the rights under this Bylaw in effect
at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of
the corporation.
(i)
Saving Clause.
If this Bylaw or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the corporation shall nevertheless indemnify each director and officer to the full extent not prohibited
by any applicable portion of this Section 43 that shall not have been invalidated, or by any other applicable law. If this Section
43 shall be invalid due to the application of the indemnification provisions of another jurisdiction, then the corporation shall
indemnify each director and officer to the full extent under any other applicable law.
(j)
Certain Definitions.
For the purposes of this Bylaw, the following definitions shall apply:
(i) The
term “proceeding” shall be broadly construed and shall include, without limitation, the investigation, preparation,
prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative.
(ii) The
term “expenses” shall be broadly construed and shall include, without limitation, court costs, attorneys’ fees,
witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in
connection with any proceeding.
(iii) The
term the “corporation” shall include, in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Section 43 with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate existence had continued.
(iv) References
to a “director,” “executive officer,” “officer,” “employee,” or “agent”
of the corporation shall include, without limitation, situations where such person is serving at the request of the corporation
as, respectively, a director, executive officer, officer, employee, trustee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
(v) References
to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the corporation”
shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services
by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation”
as referred to in this Section 43.”
Article VII of the
Company’s Restated Certificate of Incorporation, as amended, provides that the liability of directors of the Company for
monetary damages will be eliminated to the fullest extent under applicable law. Article VII does not affect the liability
of a director for any breach of his or her duty of loyalty, for acts or omissions not in good faith or that involve intentional
misconduct, for any conduct proscribed under Section 174 of the DGCL or for any transaction from which the director derived
an improper personal benefit.
In addition, the Company
has entered into indemnification agreements with each director and certain officers of the Company. The indemnification agreements
indemnify these individuals against all expenses incurred in connection with any action or investigation involving the director
or officer by reason of his or her position with the Company (or with another entity at the Company’s request). The directors
and officers who have entered into indemnification agreements will also be indemnified for costs, including judgments, fines and
penalties, indemnifiable under Delaware law or under the terms of any current or future liability insurance policy maintained by
the Company that covers the directors and officers. Pursuant to the indemnification agreements, a director or officer involved
in a derivative suit will be indemnified for expenses and amounts paid in settlement. Indemnification is dependent in every instance
on the director or officer meeting the standards of conduct set forth in the indemnification agreements.
The Company also maintains
in force a policy of liability insurance for its directors and officers.
The above discussion of
the DGCL and of the Company’s Restated Certificate of Incorporation, as amended, Amended and Restated Bylaws and indemnification
agreements is not intended to be exhaustive and is qualified in its entirety by such statute, Certificate, Bylaws and indemnification
agreements.
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 this 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 this
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) under the Securities
Act if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include
any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
provided,
however
, that the undertakings set forth in paragraphs (i) and (ii) above do not apply if 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 Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, 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, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed
by the final adjudication of such issue.