Item 6. Indemnification of Directors
and Officers.
Delaware
law provides a detailed statutory framework covering indemnification of directors, officers, employees or agents against liabilities
and expenses arising out of legal proceedings brought against them by reason of their status or service as directors, officers,
employees or agents. Section 145 of the DGCL ("Section 145") provides that a director, officer, employee or
agent of a corporation (i) shall be indemnified by the corporation for expenses actually and reasonably incurred in defense
of any action or proceeding if such person is sued by reason of his service to the corporation, to the extent that such person
has been successful in defense of such action or proceeding, or in defense of any claim, issue or matter raised in such litigation,
(ii) may, in actions other than actions by or in the right of the corporation (such as derivative actions), be indemnified
for expenses actually and reasonably incurred, judgments, fines and amounts paid in settlement of such litigation, even if he is
not successful on the merits, 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 in a criminal proceeding, if he did not have reasonable cause to believe his conduct was unlawful),
and (iii) may be indemnified by the corporation for expenses actually and reasonably incurred (but not judgments or settlements)
in any action by the corporation or of a derivative action (such as a suit by a stockholder alleging a breach by the director or
officer of a duty owed to the corporation), even if he is not successful, provided that he acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the corporation, provided that no indemnification is permitted
without court approval if the director has been adjudged liable to the corporation. Delaware law also permits a corporation to
elect to indemnify its officers, directors, employees and agents under a broader range of circumstances than that provided under
Section 145.
Provisions
in the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws limit or eliminate
the personal liability of the Registrant’s directors to the fullest extent permitted by the DGCL, as it now exists or may
in the future be amended. Consequently, a director will not be personally liable to the Registrant or the Registrant’s stockholders
for monetary damages or breach of fiduciary duty as a director, except for liability for:
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any breach of the director's duty of loyalty to the Registrant or
the Registrant’s stockholders;
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any act or omission not in good faith or that involves intentional
misconduct or a knowing violation of law;
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any unlawful payments related to dividends or unlawful stock purchases,
redemptions or other distributions; or
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any transaction from which the director derived an improper personal
benefit.
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These
limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of
equitable remedies such as an injunction or rescission.
In
addition, the Registrant’s amended and restated bylaws provide that:
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the Registrant will indemnify its directors, officers and, in the
discretion of the Registrant’s board of directors, certain employees to the fullest extent permitted by the DGCL, as it now
exists or may in the future be amended; and
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the Registrant will advance reasonable expenses, including attorneys'
fees, to its directors and, in the discretion of the Registrant’s board of directors, to its officers and certain employees,
in connection with legal proceedings relating to their service for or on behalf of the Registrant, subject to limited exceptions.
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The
Registrant has entered into indemnification agreements with each of its directors and certain of its executive officers. These
agreements provide that the Registrant will indemnify each of its directors and certain of its executive officers to the fullest
extent permitted by Delaware law.
The
Registrant also maintains general liability insurance 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, including liabilities under the Securities Act.
Reference is made to the underwriting agreement
filed as Exhibit 1.1 to Registrant’s Registration Statement on Form S-1 (Registration No. 333-190591), as amended, declared
effective by the Commission on September 25, 2013, and the underwriting agreement filed as Exhibit 1.1 to Registrant’s Registration
Statement on Form S-1 (Registration No. 333-194379), as amended, declared effective by the Commission on March 19, 2014, the equity
distribution agreement filed as Exhibit 1.1 to Registrant’s Current Report on Form 8-K filed on July 14, 2015, with respect
to the Registrant’s Registration Statement on Form S-3 (Registration No. 333-204703) that was declared effective by the Commission
on June 23, 2015, and the equity distribution agreement filed as Exhibit 1.1 to Registrant’s Current Report on Form 8-K filed
on November 14, 2016, with respect to the Registrant’s Registration Statement on Form S-3 (Registration No. 333-214146),
declared effective by the Commission on November 1, 2016, pursuant to which the underwriters have agreed to indemnify the Registrant’s
officers and directors against certain liabilities under the 1933 Act.