Item 6. Indemnification of Directors and Officers.
The General Corporation Law of the State
of Delaware (the “DGCL”) authorizes corporations to limit or eliminate the personal liability of directors to corporations
and their stockholders for monetary damages for breaches of directors’ fiduciary duties. The DGCL does not permit exculpation
for liability:
·
for breach of duty of loyalty;
· for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law;
·
under Section 174 of the DGCL (which deals generally with unlawful payments of dividends, stock repurchases and redemptions);
and
·
for transactions from which the director derived improper personal benefit.
The Registrant’s Amended and Restated
Certificate of Incorporation eliminates the personal liability of directors for monetary damages for any breach of fiduciary duty,
except to the extent such exemption is not permitted under the DGCL.
The Registrant’s Amended and Restated
Bylaws provide that the Registrant shall, to the fullest extent permitted by law, indemnify any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or proceeding by reason of the fact such person is or
was a director, officer or employee of the Registrant, or, while a director, officer or employee of the Registrant, is or was serving
at the Registrant’s request as a director, officer, employee or agent of another entity, against all liability and loss suffered
and expenses reasonably incurred. The Registrant’s Amended and Restated Bylaws further provide that the Registrant shall
advance expenses incurred in defending any such proceeding to any such indemnitees; provided, however, that, to the extent required
by law, such advancement of expenses shall be made only upon receipt of an undertaking, by or on behalf of such indemnitee, to
repay all amounts so advanced if it shall ultimately be determined that such indemnitee is not entitled to be indemnified for such
expenses under the Registrant’s Amended and Restated Bylaws or otherwise.
Any amendment to, or repeal of, these provisions
will not eliminate or reduce the effect of these provisions in respect of any act, omission or claim that occurred or arose prior
to that amendment or repeal. If the DGCL is amended to provide for further limitations on the personal liability of directors or
officers of corporations, then the personal liability of the Registrant’s directors and officers will be further limited
to the fullest extent permitted by the DGCL.
In addition, the Registrant has entered
into indemnification agreements with its current directors and executive officers containing provisions that are in some respects
broader than the specific indemnification provisions contained in the DGCL. The indemnification agreements require the Registrant
to, among other things, indemnify its directors against certain liabilities that may arise by reason of their status or service
as directors and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified.
The Registrant also intends to enter into indemnification agreements with its future directors and executive officers.
The Registrant maintains liability insurance
policies that indemnify its directors and executive officers against various liabilities, including certain liabilities under arising
under the Securities Act and the Exchange Act, that may be incurred by them in their capacity as such.
Insofar as indemnification for liabilities
arising under the Securities Act 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 the Securities Act and is therefore unenforceable.
The Plan also provides that the committee
administering the Plan and all members thereof are entitled to, in good faith, rely or act upon any report or other information
furnished to them by any officer or employee of the Registrant or any of its affiliates, or the Registrant’s legal counsel,
independent auditors, consultants or any other agents assisting in the administration of the Plan. Members of the committee and
any officer or employee of the Registrant or any of its affiliates acting at the direction of or on behalf of the committee shall
not be personally liable for any action or determination take or made in good faith with respect to the Plan, and shall, to the
fullest extent permitted by law, be indemnified and held harmless by the Registrant with respect to any such action or determination.
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 the 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 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) 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 Section 15(d) of
the Exchange Act that are incorporated by reference in the 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.
(h) 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.