Item 6. Indemnification of Directors
and Officers.
The amended and restated
certificate of incorporation and the bylaws of the Company provide that the Company shall indemnify its officers, directors and
certain others to the fullest extent permitted by the Delaware General Corporation Law (“DGCL”). Section 145 of the
DGCL, provides in pertinent part as follows:
(a) 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. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which 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 reasonable cause to believe that his conduct was
unlawful.
(b) 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 or suit by or in the right of the corporation 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 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) 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 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 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.
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 in subsections (a) and (b) of this Section, 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.
(d) Any
indemnification under subsections (a) and (b) of this Section (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 he has met the applicable standard of conduct set forth in subsections (a) and
(b) of this Section. Such determination shall be made with respect to a person who is a director or officer at the time of such
determination (1) by a majority vote of directors who are not parties to such action, suit or proceeding, even though less than
a quorum, (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, (3)
if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (4) by the
stockholders.
Expenses (including
attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action,
suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees)
incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any,
as the corporation deems appropriate.
(f) The
indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this Section shall not
be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) A
corporation shall have 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 as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify
him against such liability under this Section.
(h) For
purposes of this Section, references to “the corporation” shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request
of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, shall stand in the same position under this Section with respect to the resulting or surviving corporation
as he would have with respect to such constituent corporation if its separate existence had continued.
(i) For
purposes of this Section, references to “other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving
at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation,
which imposes duties on, or involves services by, such director, officer, employee, or agent of the corporation, which imposes
duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests
of the corporation” as referred to in this Section.
(j) The
indemnification and advancement of expenses provided by, or granted pursuant to, this Section shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
As permitted by Section
102(b)(7) of the DGCL, the Company’s fourth amended and restated certificate of incorporation eliminates the personal liability
of each of the Company’s directors to the Company and its stockholders for monetary damages for breaches of his or her fiduciary
duties as a director except that the fourth amended and restated certificate of incorporation does not eliminate or limit the liability
of a director to the extent that such elimination or limitation of liability is expressly prohibited by the DGCL as in effect at
the time of the alleged breach of duty by such director.
In addition, the Company
has entered into contractual agreements with each of its directors and officers to indemnify such individuals to the full extent
permitted by law. These agreements also resolve certain procedural and substantive matters that are not covered, or are covered
in less detail, in the Company’s By-laws or by the Delaware General Corporation Law. The Company also currently maintains
director and officer liability insurance.
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;
(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;
(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 (A) paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form
S-8 (§ 239.16b of this chapter), 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 section 15(d) of
the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) 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.
(4) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424 (§230.424 of this chapter);
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to section 13 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.
(h) 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.