Item
6. Indemnification of Directors and Officers.
Delaware
General Corporation Law
Section
145(a) of the General Corporation Law of the State of Delaware (the “DGCL”) provides 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) by reason of the
fact that 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), judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person 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 the person’s 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 the person 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 the person’s conduct
was unlawful.
Section
145(b) of the DGCL states 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 by reason of
the fact that 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 the person acted in good faith and in a manner the person 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
the person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware 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, the person is fairly and reasonably entitled to indemnity for such expenses as the Delaware
Court of Chancery or such other court shall deem proper.
Section
145(c) of the DGCL provides that 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 Section 145, or in defense
of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection therewith.
Section
145(d) of the DGCL states that any indemnification under subsections (a) and (b) of Section 145 (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 the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of Section 145. 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 the 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.
Section
145(f) of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections
of Section 145 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 such person’s
official capacity and as to action in another capacity while holding such office.
Section
145(g) of the DGCL provides that a corporation shall have the 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 such person and incurred by such person in any such capacity or arising out of such person’s status as such, whether or
not the corporation would have the power to indemnify such person against such liability under the provisions of Section 145.
Section
145(j) of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 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.
Certificate
of Incorporation
The
Registrant’s certificate of incorporation provides that 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, provided that this provision of the Registrant’s
certificate of incorporation shall not eliminate or limit the liability of a director (a) for any breach of the
director’s duty of loyalty to the Registrant or its stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL, or (d) for any transaction from which the director
derived an improper personal benefit. Any repeal or modification of this provision of the Registrant’s certificate
of incorporation shall be prospective only and shall not adversely affect any right or protection of, or any limitation of the liability
of, a director of the Registrant existing at, or arising out of facts or incidents occurring prior to, the effective date of such repeal
or modification.
Bylaws
The
Registrant’s bylaws provide for the indemnification of the officers and directors of the Registrant to the
fullest extent permitted by the DGCL. The bylaws provide that each person who was or is a party or is threatened
to be made a party to or is involved in any threatened, pending or completed action, suit, arbitration, alternative dispute mechanism,
inquiry, judicial, administrative or legislative hearing, investigation or proceeding, whether civil, criminal, administrative or investigative
and whether by or in the right of the Company or otherwise by reason of the fact that such person is or was a director or officer of
the Registrant will be indemnified and held harmless by the Registrant to the fullest extent authorized by the DGCL, as the same exists
or may hereafter be amended (but any such amendment shall not be deemed to limit or prohibit the rights of indemnification thereunder
for past acts or omissions of any such person insofar as such amendment limits or prohibits the indemnification rights that said law
permitted the Company to provide prior to such amendment), against all expenses, liabilities and losses (including attorneys’ fees,
judgments, fines, ERISA taxes or penalties and amounts paid or to be paid in settlement), reasonably incurred or suffered by such person
in connection therewith; provided, however, that the Company shall indemnify any such person seeking indemnification in connection with
a proceeding (or part thereof) initiated by such person (except for a suit or action to enforce indemnification rights thereunder) only
if such proceeding (or part thereof) was authorized by the Board of Directors of the Company.
Insurance
The
Registrant maintains directors’ and officers’ liability insurance, which covers directors and officers of the Registrant
against certain claims or liabilities arising out of the performance of their duties.
Indemnification
Agreements
The
Registrant has entered into agreements to indemnify its directors and certain of its officers. These agreements provide for indemnification
of the Registrant’s directors and applicable officers to the fullest extent permitted by the DGCL against all expenses, including
attorneys’ fees, judgments, fines and settlement amounts incurred by any such person in actions or proceedings, including actions
by the Registrant or in its right, arising out of such person’s services as a director or officer of the Registrant , any subsidiary
of the Registrant or any other company or enterprise to which the person provided services at the Registrant’s request. These agreements
are intended to give the Registrant’s officers and directors additional contractual assurances regarding the scope of the indemnification
set forth in its certificate of incorporation and bylaws and to provide additional procedural protections.
The
foregoing discussion of the Registrant’s certificate of incorporation, bylaws and Section
145 of the DGCL is not intended to be exhaustive and is qualified in its entirety by each of those documents and that statute.
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) under the Securities Act 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 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 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 Securities Exchange Act of 1934, as amended (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 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 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.