Item 6. Indemnification of Directors and Officers.
Delaware Statutes
Section 102 of the Delaware General
Corporation Law (“DGCL”) allows a corporation to eliminate the personal liability of directors of a corporation to
the corporation or to any of its stockholders for monetary damage for a breach of his or her fiduciary duty as a director, except
in the case where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate
law or obtained an improper personal benefit. Our certificate of incorporation provides that, to the fullest extent of Delaware
law, none of our directors will be liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director.
Section 145 of the Delaware General Corporation
Law (the “DGCL”) provides that a corporation may indemnify its directors and officers, as well as other employees and
individuals, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by
or in the right of the corporation – a “derivative action”), if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including attorneys’ fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval before there can be any indemnification in which
the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation’s bylaws, disinterested director vote, stockholder vote, agreement or
otherwise.
Company Articles and By Laws.
Article VI of the Company’s Certificate
of Incorporation provides that:
(A) To
the fullest extent permitted by the Delaware General Corporation Law, as the same exists or as may hereafter be amended, a director
of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director.
(B) The
Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action
or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate
is or was a director or officer of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise
as a director or officer at the request of the Corporation or any predecessor to the Corporation.
(C) Neither any amendment nor repeal of
this Article VI, nor the adoption of any provision of the Corporation's Certificate of Incorporation inconsistent with this Article
VI, shall eliminate or reduce the effect of this Article VI in respect of any matter occurring, or any action or proceeding accruing
or arising or that, but for this Article VI, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
Article VII of the Company’s Certificate
of Incorporation provides that:
Unless the Corporation consents in writing
to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum
for (A) any derivative action or proceeding brought on behalf of the Corporation, (B) any action or proceeding asserting a claim
of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation's
stockholders, (C) any action or proceeding asserting a claim against the Corporation arising pursuant to any provision of the Delaware
General Corporation Law or the Corporation's Certificate of Incorporation or Bylaws, or (D) any action or proceeding asserting
a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction
over the indispensable parties named as defendants therein.
Section 6.1 of the Company’s By-Laws
provides:
The corporation shall, to the maximum extent
and in the manner permitted by the Delaware General Corporation Law, indemnify each of its directors and officers against expenses
(including attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was an agent of the corporation. For purposes of this
Section 6.1, a “director” or “officer” of the corporation includes any person (a) who is or was a director
or officer of the corporation, (b) who is or was serving at the request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, or (c) who was a director or officer of a corporation which
was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.
Section 6.2 of the Company’s By-Laws
provides:
The corporation shall have the power, to
the maximum extent and in the manner permitted by the Delaware General Corporation Law, to indemnify each of its employees and
agents (other than directors and officers) against expenses (including attorneys’ fees), judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person
is or was an agent of the corporation. For purposes of this Section 6.2, an “employee” or “agent” of the
corporation (other than a director or officer) includes any person (a) who is or was an employee or agent of the corporation, (b)
who is or was serving at the request of the corporation as an employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or (c) who was an employee or agent of a corporation which was a predecessor corporation of the corporation
or of another enterprise at the request of such predecessor corporation.
Section 6.3 of the Company’s By-Laws
provides:
Expenses incurred in defending any action
or proceeding for which indemnification is required pursuant to Section 6.1 or for which indemnification is permitted pursuant
to Section 6.2 following authorization thereof by the Board of Directors shall be paid by the corporation in advance of the final
disposition of such action or proceeding upon receipt of an undertaking by or on behalf of the indemnified party to repay such
amount if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that the
indemnified party is not entitled to be indemnified as authorized in this Article VI.
Section 6.4 of the Company’s By-Laws
provides:
The indemnification provided by this Article
VI shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, to the extent that such additional rights to indemnification are authorized in the certificate
of incorporation.
Item 9. Undertakings.
(a) Subsequent
Disclosure
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 the 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) shall not apply if the information required to be included in a post-effective amendment
by these paragraphs is contained in 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) Incorporation
by Reference
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 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) Commission
Position on Indemnification
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, 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.