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.