Item 6. Indemnification of Directors and Officers.
Set forth below is a description of certain provisions of the Registrant’s Certificate of Incorporation, as amended (the
“Certificate of Incorporation”), the Registrant’s Second Amended and Restated By-laws (the “By-laws”)
and the Delaware General Corporation Law, as amended (the “DGCL”), as such provisions relate to the indemnification
of the directors and officers of the Registrant. This description is intended only as a summary and is qualified in its entirety
by reference to the Certificate of Incorporation, the By-laws and the DGCL.
The Registrant is a Delaware corporation.
Section 145 of the DGCL, permits, under certain circumstances, the indemnification of any person with respect 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), to which such person was or is a party or is threatened to be made a party 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. To the extent such 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, with respect to any criminal action or proceeding, had no reasonable cause to believe
the person’s conduct was unlawful and has been successful in defending any such proceeding, the DGCL provides that such person
shall be indemnified against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by the person in connection therewith. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that a 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 the person’s
conduct was unlawful.
With respect to a threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in
its favor, the corporation may indemnify such person who was or is a party to such an action or suit against expenses (including
attorney’s fees) actually and reasonably incurred by the person 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. The statute provides, however, that no indemnification is allowed in respect of any claim, issue or matter
if such person is adjudged 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, upon application, determines 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 indemnification for such expenses which
the Delaware Court of Chancery or such other court deems proper.
The DGCL provides that, to the extent that
a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to above, or in defense of any claim, issue or matter therein, such person will be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith. Any indemnification
under the preceding paragraphs, unless ordered by a court, shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct. Such determination shall be made by: (i) majority vote of directors
not parties to the action, suit or proceeding, even though less than a quorum, (ii) a committee of such directors designated
by majority vote of such directors, even though less than a quorum, (iii) written opinion of independent legal counsel if
there are no such directors or if such directors so direct, or (iv) the stockholders.
The DGCL permits a corporation to
advance expenses (including attorneys’ fees) incurred by an officer or director of the corporation in defending any
civil, criminal, administrative or investigative action, suit or proceeding, in advance of final disposition of such action,
suit or proceeding provided the officer or director undertakes to repay such advanced expenses if it is ultimately determined
that such person is not entitled to indemnification. A corporation may purchase and maintain insurance on behalf of an
indemnitee against any liability asserted against such person and incurred by such person in any such capacity, or arising
out of such person’s status as such, whether or not the corporation would be empowered to indemnify him against such
liability under Section 145 of the DGCL. Delaware law also provides that the above rights shall not be deemed exclusive of
other rights of indemnification or advancement of expenses under any bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise, both as to action in such person’s official capacity and as to action in another capacity
while holding such office.
The Certificate of Incorporation and the
By-laws generally require the Registrant to indemnify and advance expenses to its directors, officers employees and agents to the
fullest extent permitted by law.
Section 102(b)(7) of the DGCL
permits Delaware corporations in their certificates of incorporation to eliminate or limit the personal liability of a director
to the corporation or its stockholders for monetary damages for breaches of fiduciary duty as a director. Under the Certificate
of Incorporation, a director of the Registrant shall, to the maximum extent currently or hereafter permitted by Section 102(b)(7) of
the DGCL (or any successor provision) have no personal liability to the Registrant or its stockholders. Section 102(b)(7) of
the DGCL provides that Delaware corporations may 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 that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (involving
certain unlawful dividends, stock purchases or redemptions) or (iv) for any transaction from which the director derived an
improper personal benefit.
Under the By-laws, the Registrant may purchase
and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Registrant covering
any liability incurred in such capacity, or arising out of the person’s status as such. The Registrant has purchased directors’
and officers’ liability insurance covering many of the possible actions or omissions of persons acting or failing to act
in such capacities.
On June 6, 2019, the Board of Directors
of the Registrant (the “Board”) approved and adopted an updated form of indemnification agreement (the “Indemnification
Agreement”) to be entered into by the Registrant with its directors and officers. The Registrant has entered into Indemnification
Agreements with its current directors and officers, in the form approved by the Board, and the Indemnification Agreement provides
for the maximum indemnity permitted for directors and officers under the DGCL and the Registrant’s charter documents, as
well as additional procedural protections. The Indemnification Agreement requires the Registrant to indemnify the directors and
officers against liability that may arise by reason of their status or service as directors or officers of the Registrant if the
director or officer acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of
the Registrant and, in the case of a criminal proceeding had no reasonable cause to believe that his conduct was unlawful. The
foregoing description is intended only as a summary of the provisions of the Indemnification Agreement and is qualified in its
entirety by reference to the full text of the Indemnification Agreement.
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, as amended (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) of the Securities
Act 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 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) do not apply if 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 Registrant pursuant to Section 13 or 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; and
(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 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 that is incorporated by reference in this registration statement shall
be deemed 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.