Not applicable.
Item
6. Indemnification of Directors and Officers.
Pursuant to Section 145 of
the Delaware General Corporation Law (the “DGCL”), a corporation shall have the power to 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 a derivative action by or in the right of such corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of such corporation, or serving at the request of such corporation in such capacity
for 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 in connection with such action, suit or proceeding, if such person
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of such corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The DGCL also permits indemnification
by a corporation under similar circumstances for expenses (including attorneys’ fees) actually and reasonably incurred by such persons
in connection with the defense or settlement of a derivative action or suit, 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 such corporation unless the Delaware Court
of Chancery or the court in which such action or suit was brought shall determine upon application that such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
To the extent a present or
former director or officer is successful in the defense of such an action, suit or proceeding referenced above, or in defense of any claim,
issue or matter therein, a corporation is required by the DGCL to indemnify such person for actual and reasonable expenses incurred in
connection therewith. Expenses (including attorneys’ fees) incurred by such persons in defending any action, suit or proceeding
may be paid in advance of the final disposition of such action, suit or proceeding upon in the case of a current officer or director,
receipt of an undertaking by or on behalf of such person to repay such amount if it is ultimately determined that such person is not entitled
to be so indemnified.
The DGCL provides that the
indemnification described above shall not be deemed exclusive of other indemnification that may be granted by a corporation pursuant to
its bylaws, disinterested directors’ vote, stockholders’ vote and agreement or otherwise.
Section 102(b)(7) of the DGCL
enables a corporation, in its certificate of incorporation or an amendment thereto, to eliminate or limit the personal liability of a
director to the corporation or its stockholders for monetary damages for violations of the directors’ fiduciary duty, except (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) pursuant to Section 174 of the DGCL (providing for
liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv) for any transaction from
which a director derived an improper personal benefit. The Registrant’s certificate of incorporation provides for such limitations
on liability for its directors.
The DGCL also provides corporations
with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation in a similar capacity for another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him or her 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 him or her against such liability as described above.
The Registrant has obtained liability insurance for its directors and officers. Such insurance would be available to its directors and
officers in accordance with its terms.
The Registrant’s amended
and restated certificate of incorporation requires the Registrant to indemnify and hold harmless, to the fullest extent permitted by applicable
law as it presently exists or may hereafter be amended, any person (a “covered person”) who was or is made or is threatened
to be made a party or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director, officer or member
of a committee of the Registrant, or, while a director or officer of the Registrant, is or was serving at the request of the Registrant
as a director or officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or non-profit
entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’
fees), judgment, fines and amounts paid in settlement actually and reasonably incurred by such covered person in connection with a proceeding.
In addition, under the Registrant’s
amended and restated certificate of incorporation, in certain circumstances, the Registrant shall pay the expenses (including attorneys’
fees) incurred by a covered person in defending a proceeding in advance of the final disposition of such proceeding; provided, however,
that the Registrant shall not be required to advance any expenses to a person against whom the Registrant directly brings an action, suit
or proceeding alleging that such person (1) committed an act or omission not in good faith or (2) committed an act of intentional misconduct
or a knowing violation of law. Additionally, an advancement of expenses incurred by a covered person shall be made only upon delivery
to the Registrant of an undertaking, by or on behalf of such covered person, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to appeal or otherwise in accordance with Delaware law that
such covered person is not entitled to be indemnified for such expenses.
Item
9. Undertakings.
(a) The
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.
(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) herein do not apply if 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 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.
(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 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 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.