Item
6. Indemnification of Directors and Officers.
The
Third Amended and Restated Certificate of Incorporation of the Company limits the Company’s directors’ liability to the fullest
extent permitted under the General Corporation Law of the State of Delaware (the “DGCL”). The DGCL provides that directors
of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability:
|
|
●
|
for
any transaction from which the director derives an improper personal benefit;
|
|
|
●
|
for
any act or omission not in good faith or that involves intentional misconduct or a knowing
violation of law;
|
|
|
●
|
for
any unlawful payment of dividends or redemption of shares; or
|
|
|
●
|
for
any breach of a director’s duty of loyalty to the corporation or its stockholders.
|
If
the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability
of the Company’s directors will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Delaware
law and the Company’s amended and restated bylaws provide that the Company will, in certain situations, indemnify the Company’s
directors and officers and may indemnify other employees and other agents, to the fullest extent permitted by law. Any indemnified person
is also entitled, subject to certain limitations, to advancement of reasonable expenses (including attorneys’ fees and disbursements)
in advance of the final disposition of the proceeding.
The
Company maintains a directors’ and officers’ insurance policy pursuant to which the Company’s directors and officers
are insured against liability for actions taken in their capacities as directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”), may be permitted
to directors, officers, or control persons, in the opinion of the Commission, such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable.
Item
9. Undertakings.
(a)
The undersigned Company 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 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 Company 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 herein, 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 Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Company’s annual report pursuant to Section 13(a) or 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 herein, 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 Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company 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.