Item 15. Indemnification of Directors and
Officers
Section 145 of
the Delaware General Corporation Law allows for indemnification of any person
who has been made, or 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
serving as a director, officer, employee or agent of the registrant or by
reason of the fact that he or she 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. In certain
circumstances, indemnity may be provided against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement if the person acted in
good faith and in the manner reasonably believed by him to be in, or not
opposed to, the best interests of the registrant and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. In any proceeding by or in the right of the registrant, no
indemnification may be made if the person is found to be liable to the
corporation, unless and only to the extent the court in which the proceeding is
brought or the Delaware Court of Chancery orders such indemnification.
Section 102(b)(7)
of the Delaware General Corporation Law provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the directors duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 (relating to liability for
unauthorized acquisitions or redemptions of, or dividends on, capital stock) of
the Delaware General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit. The Companys Restated
Certificate of Incorporation includes a provision limiting such liability.
The Restated
Certificate of Incorporation of the Company provides that each person who was
or is made a party to or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a proceeding), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director or
officer of the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Company to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but,
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in the case of
any such amendment, only to the extent that such amendment permits the Company
to provide broader indemnification rights than said law permitted the Company
to provide prior to such amendment), against all expense, liability and loss
(including attorneys fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators.
Such right to indemnification is a contract right and includes the right to be
paid by the Company the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware
General Corporation Law requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Company of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to such
indemnity.
The foregoing
statements are specifically made subject to the detailed provisions of the
Delaware General Corporation Law and the Restated Certificate of Incorporation
of the Company.
The Company
has a directors and officers liability insurance policy that will reimburse the
Company for any payments that it shall make to directors and officers pursuant
to law or the indemnification provisions of its Restated Certificate of
Incorporation and that will, subject to certain exclusions contained in the
policy, further pay any other costs, charges and expenses and settlements and
judgments arising from any proceeding involving any director or officer of the
Company in his or her past or present capacity as such, and for which he may be
liable, except as to any liabilities arising from acts that are deemed to be
uninsurable.
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, the Company has been informed 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.
Item 17. Undertakings
The
undersigned Registrant hereby undertakes:
(A)(1) to
file, during any period in which offers or sales are being made of the
securities registered hereby, a post-effective amendment to this registration
statement:
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(a) to
include any prospectus required by Section 10(a)(3) of the Securities Act;
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(b) 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 SEC 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
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(c) 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;
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provided, however,
that undertakings set forth in paragraphs (A)(1)(a) and (A)(1)(b) 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 Securities and Exchange 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 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) that, for
purposes of determining any liability under the Securities Act, each filing of
the registrants annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act and where applicable, each filing of an employee benefit plans
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 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 registrant
pursuant to the provisions described in Item 15 hereof, 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, the registrant will, unless in
the opinion of 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.
(D) that, for
purposes of determining any liability under the Securities Act, the information
omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or Rule 497(h) under
the Securities Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(E) that, for
purposes of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus 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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