Item 6. Indemnification of Directors and Officers.
Section 317 of
the California General Corporations Law (the “CGCL”)
authorizes a court to award, or a corporation’s board of
directors to grant, indemnity to directors and officers who are
parties or are threatened to be made parties to any proceeding
(with certain exceptions) by reason of the fact that the person is
or was an agent of the corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably
incurred in connection with the proceeding if that person acted in
good faith and in a manner the person reasonably believed to be in
the best interests of the corporation, and in the case of a
criminal proceeding, had no reasonable cause to believe the conduct
of the person was unlawful.
Section 204 of
the CGCL provides that a corporation’s articles of
incorporation may not limit the liability of directors (i) for acts
or omissions that involve intentional misconduct or a knowing and
culpable violation of law, (ii) for acts or omissions that a
director believes to be contrary to the best interests of the
corporation or its shareholders or that involve the absence of good
faith on the part of the director, (iii) for any transaction from
which a director derived an improper personal benefit, (iv) for
acts or omissions that show a reckless disregard for the
director’s duty to the corporation or its shareholders in
circumstances in which the director was aware, or should have been
aware, in the ordinary course of performing a director’s
duties, of a risk of a serious injury to the corporation or its
shareholders, (v) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of
the director’s duty to the corporation or its shareholders,
(vi) under Section 310 of the CGCL (concerning transactions
between corporations and directors or corporations having
interrelated directors) or (vii) under Section 316 of the CGCL
(concerning directors’ liability for distributions, loans,
and guarantees).
Section 204
further provides that a corporation’s articles of
incorporation may not limit the liability of directors for any act
or omission occurring prior to the date when the provision became
effective or any act or omission as an officer, notwithstanding
that the officer is also a director or that his or her actions, if
negligent or improper, have been ratified by the directors.
Further, Section 317 has no effect on claims arising under
federal or state securities laws and does not affect the
availability of injunctions and other equitable remedies available
to a corporation’s shareholders for any violation of a
director’s fiduciary duty to the corporation or its
shareholders.
In
accordance with Section 317, the Restated Articles of
Incorporation, as amended (the “Articles”), of the
Registrant limit the liability of a director to the fullest extent
permissible under California law. The Articles further
authorize the Registrant to provide indemnification to its agents
(including officers and directors), subject to the limitations set
forth above. The Articles and the Registrant’s By-Laws
(the “By-Laws”) further provide for indemnification of
corporate agents to the maximum extent permitted by the
CGCL.
Pursuant to the
authority provided in the Articles and By-Laws, the Registrant has
entered into indemnification agreements with its executive officers
and directors, indemnifying them against certain potential
liabilities that may arise as a result of their service to the
Registrant, and providing for certain other
protection.
The
foregoing summaries are necessarily subject to the complete text of
the statute, the Articles, the By-Laws and the agreements referred
to above and are qualified in their entirety by reference
thereto.
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 SEC pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20 percent 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.
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or Section 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.
(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, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the
Exchange Act) 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 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 SEC, 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.