Item 6. Indemnification of Directors
and Officers.
Amended and Restated
Certificate of Incorporation
Article VI
of the Company’s Amended and Restated Certificate of Incorporation (the “Charter”) provides that, to the fullest extent
permitted by applicable law, the Company is authorized to provide indemnification of (and advancement of expenses to) directors, officers,
and agents of the Company (and any other persons to which applicable law permits the Company to provide indemnification) through bylaw
provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors, or otherwise in excess of
the indemnification and advancement otherwise permitted by such applicable law. Additionally, Article VI of the Charter provides
that the liability of the directors for monetary damages shall be eliminated to the fullest extent under applicable law.
Amended and Restated
Bylaws
Section 43(a) of
the Company’s Amended and Restated Bylaws (the “Bylaws”) provides for indemnification of its directors to the fullest
extent not prohibited by the Delaware General Corporation Law (the “DGCL”) or any other applicable law; provided, however,
that the Company may modify the extent of such indemnification by individual contracts with its directors and shall not be required to
indemnify any director in connection with any proceeding (or part thereof) initiated by such person 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 any
other applicable law, or (iv) such indemnification is required to be made under subsection Section 43(d) of the Bylaws
(described below).
Pursuant to Section 43(c) of
the Bylaws, the Company will advance to 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, by reason of the fact that he or
she is or was a director of the Company, or is or was serving at the request of the Company as a director or officer of another corporation,
partnership, joint venture, trust, or other enterprise, prior to the final disposition of the proceeding, promptly following request
therefor, all expenses incurred by any director in connection with such proceeding; provided, however, that, if the DGCL requires, an
advancement of expenses incurred by a director in his or her capacity as a director (and not in any other capacity in which service was
or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery
to the Company of an undertaking, by or on behalf of such indemnitee, 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 that such indemnitee is not entitled to be indemnified for
such expenses.
Under Section 43(d) of
the Bylaws, without the necessity of entering into an express contract, all rights to indemnification and advances to directors under
the Bylaws shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between
the Company and the director. Any right to indemnification or advances granted by the Bylaws to a director shall be enforceable by or
on behalf of the person holding such right in any court of competent jurisdiction if (i) the claim for indemnification or advances
is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefor. To the
extent permitted by law, the claimant in such enforcement action, if successful in whole or in part, shall be entitled to be paid also
the expense of prosecuting the claim. In connection with any claim for indemnification, the Company shall be entitled to raise as a defense
to any such action that the claimant has not met the standards of conduct that make it permissible under the DGCL or any other applicable
law for the Company to indemnify the claimant for the amount claimed. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because the director has met the applicable standard of conduct set forth in the DGCL
or any other applicable law, nor an actual determination by the Company (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable standard of conduct. In any suit brought by a director to enforce a right to indemnification
or to an advancement of expenses hereunder, the burden of proving that the director is not entitled to be indemnified, or to such advancement
of expenses, under Section 43(d) or otherwise shall be on the Company.
Section 43(b) of
the Bylaws provides that the Company shall have the power to indemnify its officers, employees, and other agents as set forth in the
DGCL or any other applicable law.
Additionally, the
Bylaws provide that the rights conferred thereunder are not exclusive of any other right pursuant to any applicable statute, provision
of the Charter, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Specifically, the Company is authorized
to enter into individual contracts with any or all of its directors, officers, employees, or agents respecting indemnification and advances,
to the fullest extent not prohibited by the DGCL, or by any other applicable law. Similarly, the Bylaws also provide, that the Company,
to the fullest extent permitted by the DGCL or any other applicable law, may purchase insurance on behalf of any person required or permitted
to be indemnified pursuant thereto.
If the Bylaws or
any portion thereof are invalidated on any ground by any court of competent jurisdiction, then the Company is nevertheless required to
indemnify each director to the full extent not prohibited by any applicable portion of the Bylaws that shall not have been invalidated,
or by any other applicable law. If the Bylaws are invalid due to the application of the indemnification provisions of another jurisdiction,
then the Company is required to indemnify each director to the full extent under any other applicable law.
General Corporation
Law of the State of Delaware
Under Section 145
of the DGCL, the Company is empowered to indemnify its directors and officers in the circumstances therein provided. Certain portions
of Section 145 are summarized below:
Section 145(a) of
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 such 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 such person in connection with such action, suit or proceeding if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and in criminal actions
where such person had no reasonable cause to believe such person’s conduct was unlawful.
Section 145(b) of
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 or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that
such 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 such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter in which such 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, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court
of Chancery or such other court shall deem proper.
Under Section 145(c) of
the DGCL, indemnification against expenses (including attorneys’ fees) actually and reasonably incurred by directors, officers,
employees and agents is required in those cases where the person to be indemnified has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 145(a) and (b), or in defense of any claim, issue or matter
therein.
Section 145(d) of
the DGCL provides that any indemnification under Section 145(a) and (b) (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 such person has met the applicable standard of conduct set forth in Section 145(a) and
(b). 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 were not parties to such action, suit or proceeding, even though less than a quorum, or (2) by
a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (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(e) of
the DGCL provides that expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in Section 145. Such
expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the corporation deems appropriate.
Section 145(f) of
the DGCL provides that the indemnification and advancement of expenses provided by, or granted pursuant to, 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.
Under Section 145(g) of
the DGCL, a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent
of the corporation, or who, while serving in such capacity, is or was at the request of the corporation, a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, against liability asserted against or 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 provide indemnity under Section 145.
Indemnification
Agreements
The Company has
indemnification agreements with its directors containing provisions which are in some respects broader than the specific indemnification
provisions contained in the DGCL. The indemnification agreements require the Company, among other things, to indemnify its directors
against certain liabilities that may arise by reason of their status or service as directors and to advance their expenses incurred as
a result of any proceeding against them as to which they could be indemnified.
Insurance Policies
The Company maintains
insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange
Act that might be incurred by any director or officer in his or her capacity as such.
The above discussion
of the Company’s Charter, Bylaws, indemnification agreements, insurance policies, and of Section 145 of the DGCL is not intended
to be exhaustive and is respectively qualified in its entirety by such Charter, Bylaws, indemnification agreements, policies, and applicable
statutes.
Item 9. Undertakings.
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(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;
(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 this 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 reports filed with or furnished to the Commission by the Company pursuant to Section 13 or 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 (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act), each filing of
the registrant’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 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 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.