Item
6. Indemnification of Directors and Officers
Section
145(a) of the Delaware General Corporation Law (DGCL) provides, in general, that 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), because he or
she 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 the person in connection with such action, suit, or proceeding, if he or she acted in good faith and in a manner he or she
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 or her conduct was unlawful.
Section
145(b) of the DGCL provides, in general, that 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 because the 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, against expenses (including attorneys’ fees) actually and reasonably incurred by the person
in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be
made with respect to any claim, issue, or matter as to which he or she shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication
of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for
such expenses that the Court of Chancery or other adjudicating court shall deem proper.
Section
145(e) of the DGCL provides that 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 such person is not entitled to be indemnified by the corporation as authorized
by Section 145 of the DGCL. Section 145(e) of the DGCL further provides that such expenses (including attorneys’ fees) incurred
by former directors and officers or other employees or agents of the corporation may be so paid upon such terms and conditions
as the corporation deems appropriate.
Section
145(g) of the DGCL provides, in general, that a corporation may 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 such person and incurred by such person in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power to indemnify the person against such liability under Section 145 of
the DGCL.
Section
102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (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 which involve intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which
the director derived an improper personal benefit.
The
registrant’s amended and restated certificate of incorporation provides that the registrant shall indemnify, in the manner
and to the full extent permitted by law, any person (or the estate of 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 or not by or in the right of the registrant,
and whether civil, criminal, administrative, investigative or otherwise, by reason of the fact that such person is or was a director,
officer, employee or agent of the registrant, or is or was serving at the request of the registrant as a director, officer, employee
or agent of another registrant, partnership, joint venture, trust or other enterprise. To the full extent permitted by law, the
indemnification provided by the registrant’s amended and restated certificate of incorporation shall include expenses (including
attorneys’ fees) in any action, suit or proceeding, or in connection with any appeal therein, judgments, fines and amounts
paid in settlement, and in the manner provided by law any such expenses may be paid by the registrant in advance of the final
disposition of such action, suit or proceeding. The registrant’s amended and restated certificate of incorporation further
provides that, to the extent permitted by law, no director of the registrant shall be liable to the registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s
duty of loyalty to the registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) under section 174 of the DGCL; or (iv) for any transaction from which the director
derived an improper personal benefit.
The
registrant’s bylaws, as amended, provides that each person who was or is made a party to or is threatened to be made a party
to, witness or other participant in any action, suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he or she is or was a director or officer of the registrant, whether the basis of the proceeding is
alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the registrant to the fullest extent authorized by the DGCL, against all expense, liability
and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such person in connection therewith; provided, however, the registrant shall not indemnify any such person
in connection with a proceeding (i) initiated by such person against the registrant or any director or officer of the registrant
unless the registrant has joined in or consented to the initiation of such proceeding or (ii) made on account of such person’s
conduct which constitutes a breach of such person’s duty of loyalty to the registrant or its stockholders, or is an act
or omission not in good faith which involves intentional misconduct or a knowing violation of the law.
The
registrant also maintain a general liability insurance policy which covers certain liabilities of its directors and officers arising
out of claims based on acts or omissions in their capacities as directors or officers, whether or not the registrant would have
the power to indemnify such person against such liability under the DGCL or the provisions of its amended and restated certificate
of incorporation or bylaws.
The
registrant has entered into indemnification agreements with each of its directors and executive officers. These agreements provide
that the registrant will indemnify each of its directors and such officers to the fullest extent permitted by law and by its amended
and restated certificate of incorporation or bylaws.
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 Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 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 the registration statement
or any material change to such information in the registration statement;
Provided
,
However
, that subsections (i) and (ii) above do not apply if the information required to be included in a post-effective
amendment by those subsections 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 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 further 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 provisions described in Item 6. Indemnification of Directors and Officers” above,
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 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.