Item 6.
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Indemnification of Directors and Officers.
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Our amended and restated certificate of
incorporation, as amended, and our amended and restated bylaws, as amended, provide that each person who was or is made a party
or is threatened to be made a party to or is otherwise involved (including, without limitation, as a witness) 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 an officer of Cyclacel Pharmaceuticals, Inc. or is or was serving at our request as a director, officer, or trustee of
another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee
benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee
or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by us to the fullest
extent authorized by the Delaware General Corporation Law 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.
Section 145 of the Delaware
General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses
(including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in
connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer
of the corporation, if such person acted in good faith and in a manner that 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, if he or she had no reason
to believe his or her conduct was unlawful. In a derivative action, (i.e., one brought by or on behalf of the
corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer
in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner
that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no
indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to
the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably
entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of
the Delaware General Corporation Law, our amended and restated certificate of incorporation eliminates the liability of a director
to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
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From any breach of the director’s duty of loyalty
to us or our stockholders;
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From acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
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Under Section 174 of the Delaware General Corporation
Law; and
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From any transaction from which the director derived
an improper personal benefit.
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We carry insurance policies insuring our
directors and officers against certain liabilities that they may incur in their capacity as directors and officers.
The Company has entered into indemnification
agreements with each of its directors and executive officers. Pursuant to the indemnification agreements, the Company agrees to
hold harmless and indemnify its directors and executive officers to the fullest extent authorized or permitted by the provisions
of the Company’s amended and restated certificate of incorporation, amended and restated by-laws and the DGCL, including
for any amounts that such director or officer becomes obligated to pay because of any claim to which such director or officer is
made or threatened to be made a party, witness or participant, by reason of such director’s or officer’s service as
a director, officer, employee or other agent of the Company.
There are certain exceptions from the Company’s
obligation to indemnify its directors and executive officers pursuant to the indemnification agreements, including for “short-swing”
profit claims under Section 16(b) of the Exchange Act losses that are as a result of conduct that is established by a
final judgment as knowingly fraudulent or deliberately dishonest or that constituted willful misconduct, or that constituted a
breach of the duty of loyalty to the Company or resulted in any improper personal profit or advantage, where payment is actually
made to a director or officer under an insurance policy, indemnity clause, bylaw or agreement, except in respect of any excess
beyond payment under such insurance, clause, bylaw or agreement, for indemnification which is not lawful, or in connection with
any proceeding initiated by such director or officer, or any proceeding against the Company or its directors, officers, employees
or other agents, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized
by the board of directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant
to the powers vested in the Company under the DGCL, or (iv) the proceeding is initiated to enforce a claim for indemnification
pursuant to the indemnification agreement.
All agreements and obligations of the Company
contained in the indemnification agreements shall continue during the period when the director or officer who is a party to an
indemnification agreement is a director, officer, employee or other agent of the Company (or is or is serving at the request of
the Company as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so long as such director or officer shall be subject to any possible
claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or
investigative. In addition, the indemnification agreements provide for partial indemnification and advance of expenses.
(a)
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The undersigned Registrant hereby undertakes:
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(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, represents 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) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs 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 Securities Exchange Act of 1934 that
are incorporated by reference in this 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.
(b)
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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(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this 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.
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(c)
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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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