Item
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Delaware corporation.
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) enables a corporation to eliminate or limit
the personal liability of a director to the corporation or its stockholders for monetary damages for breach of the director’s
fiduciary duty, except:
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for any breach of the director’s duty of loyalty to the corporation or its stockholders;
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions); or
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for any transaction from which the director derived an improper personal benefit.
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In accordance with Section 102(b)(7) of
the DGCL, the Certificate of Incorporation of the Registrant includes a provision eliminating, to the fullest extent permitted
by the DGCL, the liability of the Registrant’s directors to the Registrant or its stockholders for monetary damages for breach
of fiduciary as director.
Section 145(a) of the DGCL empowers a corporation
to indemnify any present or former director, officer, employee or agent of the corporation, or any individual serving at the corporation’s
request as a director, officer, employee or agent of another organization, 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), 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
provided that such director, officer, employee or agent acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, provided
further that such director, officer, employee or agent had no reasonable cause to believe his or her conduct was unlawful.
The DGCL provides that the indemnification
described above shall not be deemed exclusive of any other indemnification that may be granted by a corporation pursuant to its
by-laws, disinterested directors’ vote, stockholders’ vote, agreement or otherwise.
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 the
corporation, or is or was serving at the request of the 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.
In accordance with Section l45(a) of the
DGCL, the Registrant’s Amended and Restated By-Laws provide that every 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 such person, or such person’s testator or intestate, is or was serving as a director or officer
of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, or as a member of any committee or similar body, shall be indemnified and
held harmless to the fullest extent legally permissible under the DGCL against all expenses (including attorney’s fees),
judgments, penalties, fines and amounts paid in settlement and reasonably incurred by such person in connection with such action,
suit or proceeding (including appeals) or the defense or settlement thereof or any claim, issue, or matter therein. Expenses incurred
by a director or officer in defending such an action, suit or proceeding shall be paid by the Registrant in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay any amount
if it is ultimately determined that such director or officer is not entitled to indemnification by the Registrant as authorized
by the relevant sections of the DGCL.
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 this 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. 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 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in this registration statement; and
(iii) To
include any material information with respect to the Incentive Plan not previously disclosed in this Registration Statement or
any material change to such information in this 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 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 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 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.
(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
hereunder, 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 of 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.