Item
6.
|
Indemnification
of Directors and Officers.
|
Delaware
General Corporation Law
. The registrant is a Delaware corporation. Section 102(b)(7) of the Delaware General Corporation Law
(the “DGCL”) enables a corporation to eliminate or limit the personal liability of a director to the corporation or
its stockholders for monetary damages for breach of the director’s fiduciary duty, except:
·
|
●
|
for
any breach of the director’s duty of loyalty to the corporation or its stockholders;
|
|
|
|
·
|
●
|
for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
|
|
|
|
·
|
●
|
pursuant
to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases
or redemptions); or
|
|
|
|
·
|
●
|
for
any transaction from which the director derived an improper personal benefit.
|
In
accordance with Section 102(b)(7) of the DGCL, the registrant’s certificate of incorporation includes a provision eliminating,
to the fullest extent permitted by the DGCL, the liability of the registrant’s directors to the registrant or its stockholders
for monetary damages for breach of fiduciary as director. If the DGCL is subsequently amended to further eliminate or limit the
liability of a director, then a director of the registrant, in addition to the circumstances in which a director is not personally
liable as set forth in provision described in the preceding sentence, will not be liable to the fullest extent permitted by the
amended DGCL.
Subsection
(a) of 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 (other than an action by or in the right of the corporation) by reason of the fact that he 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 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. Section 145 of the DGCL further provides that a corporation similarly may indemnify any such person serving in any such
capacity 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, against expenses (including attorneys’ fees) actually
and reasonably incurred in connection with the defense or settlement of such action or suit 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 except that no indemnification
shall 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 such other court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all of 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.
Certificate
of Incorporation and Bylaws
. The registrant’s amended and restated certificate of incorporation contains provisions
which provide that the registrant will indemnify the registrant’s directors and officers in each and every situation where,
under Section 145 of the DGCL, as amended from time to time, the registrant is permitted or empowered to make such indemnification,
and to the fullest extent permitted by law. The registrant may, in the sole discretion of its Board of Directors, indemnify any
other person who may be indemnified pursuant to Section 145 of the DGCL to the extent the Board of Directors deems advisable,
as permitted by Section 145 of the DGCL.
The
registrant’s bylaws contain provisions which provide, among other things, that the registrant shall indemnify any officer
or director who was or is a party or is threatened to be made a party to any threatened, pending or completed (i) action, suit
or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the registrant)
by reason of the fact that he is or was a director, officer, employee or agent of the registrant, or is or was serving at the
request of the registrant as a director, officer, employee or agent of another registrant, partnership, limited liability company,
joint venture, trust, employee benefit plan 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 he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the registrant,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful and (ii) action
or suit by or in the right of the registrant to procure a judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the registrant, or is or was serving at the request of the registrant as a director, officer, employee
or agent of another registrant, partnership, limited liability company, joint venture, trust, employee benefit plan 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 he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests
of the registrant; except that no indemnification shall be made in respect of any claim, issue or matters 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 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. Any indemnification under the provisions in the bylaws (unless ordered by a
court) shall be made by the registrant only as authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set
forth above. Such determination shall be made (i) by a majority vote of the directors who were not parties to such action, suit
or proceeding even though less than a quorum, or (ii) if there are no such directors, or, if such directors so direct, by independent
legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director, officer, employee or
agent of the registrant has been successful on the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific
case.
The
DGCL provides that the indemnification described above shall not be deemed exclusive of any other indemnification that may be
granted by a corporation pursuant to its by-laws, disinterested directors’ vote, stockholders’ vote, agreement or
otherwise.
Indemnification
Agreements
. In addition to the indemnification provided for in the registrant’s amended and restated certificate of
incorporation and bylaws, the registrant has entered into indemnification agreements with each of its directors and officers to
provide the directors and officers with contractual rights to indemnification and advance payment of expenses to the fullest extent
permitted by the law and to further establish procedures for such indemnification.
Insurance
Policies
. The DGCL also provides corporations with the power to purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in
a similar capacity for another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted
against 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 liability as described above. The registrant has directors and officer’s
liability insurance in an amount not less than $5 million.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, or persons
controlling the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the Commission
such indemnification is against public policy as expressed in such Securities Act and is therefore unenforceable.
(a)
The undersigned Company 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 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;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the registration statement is on Form S-3, Form S-8,
or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this 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 Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the Company’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 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 Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the
opinion of the 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 Company of expenses incurred
or paid by a director, officer or controlling person of the Company 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 Company 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.
(signatures
on following page)