Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
("Section 145"), Article VII of the Registrant's Amended and Restated
Certificate of Incorporation, and Article VIII of the Registrant's By-Laws, as
restated, provide for the indemnification of the Registrant's directors and
officers in a variety of circumstances, which may include indemnification for
liabilities under the Securities Act of 1933. The general effect of these
provisions is to provide that the Registrant shall indemnify its directors and
officers against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by them in the
proceeding in which such persons are made a party by reason of being or having
been a director or officer of Registrant, but only if it is determined that they
acted in good faith and in a manner they reasonably believed to be in or not
opposed to the best interest of the Registrant and, with respect to any criminal
action or proceeding, had no reasonable cause to believe their conduct was
unlawful. Such determination may be made by (i) a majority vote of a quorum
consisting of disinterested directors, (ii) an independent legal counsel in a
written opinion (if no such quorum is available or if a quorum of disinterested
directors so directs), or (iii) the stockholders. The Registrant will pay
expenses incurred by its directors and officers prior to the final disposition
of such action, suit or proceeding, if the director or officer undertakes to
repay such amount unless it is ultimately determined that they are entitled to
be indemnified by the Registrant.
The Registrant has insurance which, subject to certain policy limits,
deductible amounts and exclusions, insures directors and officers of the
Registrant for liabilities incurred as a result of acts committed in their
capacity as directors and officers or claims made against them by reason of
their status as directors or officers.
As permitted pursuant to Section 102(b) (7) of the General Corporation Law
of the State of Delaware, the Amended and Restated Certificate of Incorporation
of the Registrant eliminates the personal monetary liability of a director of
the Registrant or its stockholders for breach of fiduciary duty as a director,
except for liability that results from (i) any breach of the director's duty of
loyalty to the Registrant or its stockholders; (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) Section 174 of the General Corporation Law of the State of Delaware
(which Section pertains to a director's
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liability for unlawful payments of dividends or unlawful stock purchases or
redemptions); or (iv) any transaction from which the director derived an
improper personal benefit.
ITEM 9. UNDERTAKINGS
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;
(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;
(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 (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, 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 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining
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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.
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.
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