Item 14. Indemnification
of Directors and Officers
Delaware
General Corporation Law
Section
102(b)(7) of the Delaware General Corporation Law permits eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director: (i) For any breach of the director'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) under § 174 of the DGCL; or (iv) for any transaction from which the director derived an improper personal benefit
As
provided by Section 145 of the DGCL, we have 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 Company, or is or was serving at the request of the Company as a director, officer, employee or agent
of another Company, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the person 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 interests
of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct
was unlawful. Section 145 contains a similar indemnification power of the Company with respect any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in its favor (shareholder derivative suits).
Under
Section 145, to the extent that a present or former director or officer of the Company has been successful on the merits or otherwise
in defence of any such action, suit or proceeding, or in defence of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. (d)
A determination as to the applicable standard of conduct for eligibility for indemnification shall be made, with respect to a
person who is a director or officer of the corporation at the time of such determination:
(1) By
a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; or
(2) By
a committee of such directors designated by majority vote of such directors, even though less than a quorum; or
(3) If
there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion; or
(4) By
the stockholders.
Expenses
(including attorneys' fees) incurred by an officer or director of the Company in defending any civil, criminal, administrative
or investigative action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the Company as authorized in this section.
This
indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 of the DGCL, continues, unless otherwise
provided when authorized or ratified, as to a person who has ceased to be a director, officer, employee or agent and inures to
the benefit of the heirs, executors and administrators of such a person.
Certificate
of Incorporation
Our
Certificate of Incorporation provides in Article 10 that no director of this Company shall be personally liable to the Company
or its shareholders for monetary damages for breach of fiduciary duty as a director, except (a) for breach of the director's duty
of loyalty to this Company or its shareholders, (b) for acts or omissions not in good faith or which involves intentional misconduct
or a knowing violation of law, (c) under Section 174 of the DGCL, or (d) for any transaction from which the director derived an
improper personal benefit. If the DGCL is amended after approval by the shareholders of this article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the liability of a director of the Company shall be
eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any repeal or modification of this provision
by the shareholders of the Company shall not adversely affect any right or protection of a director of the Company existing at
the time of such repeal or modification.
Article
11 of our Certificate of Incorporation provides that:
a) each
person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding
whether civil, criminal or administrative, (a "Proceeding"), or is contacted by any governmental or regulatory body
in connection with any investigation or inquiry (an "Investigation"), by reason of the fact that he or she is or was
a director or executive officer (as such term is utilized pursuant to interpretations under Section 16 of the Securities Exchange
Act of 1934) of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit
plans (an "Indemnitee"), whether the basis of such Proceeding or Investigation is alleged action in an official capacity
or in any other capacity as set forth above shall be indemnified and held harmless by the Company to the fullest extent authorized
by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to
such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith and such indemnification
shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit
of the Indemnitee's heirs, executors and administrators. The right to indemnification conferred in Article 11 shall be a contract
right and shall include the right to be paid by the Company the expenses incurred in defending any such Proceeding in advance
of its final disposition (an "Advancement of Expenses");
provided, however,
that an Advancement of Expenses shall
be made only upon delivery to the Company of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced
if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such Indemnitee
is not entitled to be indemnified for such expenses under Article 11or otherwise (an "Undertaking").
b)
If a claim under Article 11(a) is not paid in full by the Company within 60 days after a written claim has been received by the
Company, except in the case of a claim for an Advancement of Expenses, in which case the applicable period shall be 20 days, the
Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit or in a suit brought by the Company to recover an Advancement of Expenses pursuant to the
terms of an Undertaking, the Indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In
any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee
to enforce a right to an Advancement of Expenses) it shall be a defense that, and (ii) any suit by the Company to recover an
Advancement of Expenses pursuant to the terms of an Undertaking the Company shall be entitled to recover such expenses upon a
final adjudication that, the Indemnitee has not met the applicable standard of conduct set forth in the DGCL. Neither the failure
of the Company (including its board of directors, independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee
has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Company (including its board
of directors, independent legal counsel, or its shareholders) that the Indemnitee has not met such applicable standard of conduct
or, in the case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right hereunder, or by the Company to recover an Advancement of Expenses pursuant to the terms of an undertaking, the
burden of proving that the Indemnitee is not entitled to be indemnified or to such Advancement of Expenses under Article 11 or
otherwise shall be on the Company. The rights to indemnification and to the Advancement of Expenses conferred in Article 11 shall
not be exclusive of any other right which any person may have or hereafter acquire under any statute, the certificate of incorporation,
bylaw, agreement, vote of shareholders or disinterested directors or otherwise
c) The
Company may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Company
or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether
or not the Company would have the power to indemnify such person against such expense, liability or loss under the DGCL.
d) The
Company may, to the extent authorized from time to time by the board of directors, grant rights to indemnification and to the
Advancement of Expenses, to any employee or agent of the Company to the fullest extent of the provisions of this Section with
respect to the indemnification and Advancement of Expenses of directors, and executive officers of the Company.
e) Notwithstanding
the indemnification provided for by Article 11, the Company's bylaws, or any written agreement, such indemnity shall not include
any expenses incurred by such Indemnitees relating to or arising from any Proceeding in which the Company asserts a direct claim
against any Indemnitee whether such claim by the Company is termed a complaint, counterclaim, crossclaim, third-party complaint
or otherwise.
Item
17. Undertakings
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 Securities
and Exchange 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; and
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;
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; and
4.
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each
prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration
statements relying on 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included
in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in
a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date
of first use.
5.
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications,
the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
i.
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
ii. Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
iii. The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
iv. Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser;
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 Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such issue.