Item 6. Indemnification of Directors and
Officers
.
Section
102(b)(7) of the Delaware General Corporation Law (DGCL) allows a
corporation to provide in its certificate of incorporation for the
elimination or limitation of personal liability of a director to
the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, with some exceptions. Article V,
Section 3 of our amended and restated certificate of incorporation
provides that to the fullest extent permitted by the DGCL, no
director shall be personally liable to us or our stockholders for
monetary damages for breach of a fiduciary duty as a
director.
Section
145 of the DGCL provides that a 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 by reason
of the fact that he is or was a director, officer, employee or
agent of the corporation, or serving at the request of the
corporation in similar capacities, 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 he acted in good faith and
in a manner he 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 conduct was unlawful. In the case of an action or suit by or in
the right of the corporation, 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 having jurisdiction shall determine
that such person is fairly and reasonably entitled to
indemnity.
Article
VI of our amended and restated certificate of incorporation and
Article IX of our bylaws provide that we shall make the
indemnification permitted under the DGCL, as summarized above, but
only (unless ordered by a court) upon a determination by a majority
of a quorum of disinterested directors, by independent legal
counsel in a written opinion, or by the stockholders, that the
indemnified person has met the applicable standard of
conduct.
Article
VI of our amended and restated certificate of incorporation and
Article IX of our bylaws further provide that we may advance
expenses for defending actions, suits or proceedings upon such
terms and conditions as our board of directors deems appropriate,
and that we may purchase insurance on behalf of indemnified persons
whether or not we would have the power to indemnify such persons
under Section 145 of the DGCL. We have obtained a directors’
and officers’ liability insurance policy which covers, among
other things, certain liabilities arising under the Securities Act
of 1933.
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 of
1933;
(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 a 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 paragraphs
(a)(1)(i) and (a)(1)(ii) 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.
(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 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 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.