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Item 6.
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Indemnification
of Directors and Officers
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Delaware
General Corporation Law
Section 145(a)
of the General Corporation Law of the State of Delaware (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 the 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 the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the
person 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 the person’s conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person 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 reasonable cause to believe that the person’s conduct was unlawful.
Section 145(b)
of the DGCL states 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 the 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 the person in connection with
the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which the 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, the person is fairly and reasonably
entitled to indemnity for such expenses as the Delaware Court of Chancery or such other court shall deem proper.
Section 145(c)
of the DGCL provides that to the extent that a present or former director or officer of a corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145,
or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection therewith.
Section 145(d)
of the DGCL states that any indemnification under subsections (a) and (b) of Section 145 (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 the person has met the applicable standard
of conduct set forth in subsections (a) and (b) of Section 145. 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 are not
parties to such action, suit or proceeding, even though less than a quorum, (2) by a committee of such directors designated
by majority vote of such directors, even though less than a quorum, (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(f)
of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections
of 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.
Section 145(g)
of the DGCL provides that a corporation shall have 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 as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and 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 indemnify such person against such liability under the
provisions of Section 145.
Section 145(j)
of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145
shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Certificate
of Incorporation
The
Registrant’s amended and restated certificate of incorporation provides that no director of the Registrant shall be liable
to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision
of the Registrant’s amended and restated certificate of incorporation shall not eliminate or limit the liability of a director
(a) for any breach of the director’s duty of loyalty to the Registrant or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the
DGCL, or (d) for any transaction from which the director derived an improper personal benefit. Any repeal or modification
of this provision of the Registrant’s amended and restated certificate of incorporation shall be prospective only and shall
not adversely affect any right or protection of, or any limitation of the liability of, a director of the Registrant existing
at, or arising out of facts or incidents occurring prior to, the effective date of such repeal or modification.
Bylaws
The
Registrant’s amended and restated bylaws provide for the indemnification of the officers and directors of the Registrant
to the fullest extent permitted by the DGCL. The amended and restated bylaws provide that each person who was or is a party or
is threatened to be made a party to or is involved in any threatened, pending or completed action, suit, arbitration, alternative
dispute mechanism, inquiry, judicial, administrative or legislative hearing, investigation or proceeding, whether civil, criminal,
administrative or investigative and whether by or in the right of the Company or otherwise by reason of the fact that such person
is or was a director or officer of the Registrant will be indemnified and held harmless by the Registrant to the fullest extent
authorized by the DGCL, as the same exists or may hereafter be amended (but any such amendment shall not be deemed to limit or
prohibit the rights of indemnification thereunder for past acts or omissions of any such person insofar as such amendment limits
or prohibits the indemnification rights that said law permitted the Company to provide prior to such amendment), against all expenses,
liabilities and losses (including attorneys’ fees, judgments, fines, ERISA taxes or penalties and amounts paid or to be
paid in settlement), reasonably incurred or suffered by such person in connection therewith; provided, however, that the Company
shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person
(except for a suit or action to enforce indemnification rights thereunder) only if such proceeding (or part thereof) was authorized
by the Board of Directors of the Company.
Insurance
The
Registrant maintains directors and officers liability insurance, which covers directors and officers of the Registrant against
certain claims or liabilities arising out of the performance of their duties.
Indemnification
Agreements
The
Registrant has entered into agreements to indemnify its directors and certain of its officers. These agreements provide for indemnification
of the Registrant’s directors and applicable officers to the fullest extent permitted by the DGCL against all expenses,
including attorneys’ fees, judgments, fines and settlement amounts incurred by any such person in actions or proceedings,
including actions by the Registrant or in its right, arising out of such person’s services as a director or officer of the
Registrant , any subsidiary of the Registrant or any other company or enterprise to which the person provided services at the
Registrant’s request. These agreements are intended to give the Registrant’s officers and directors additional
contractual assurances regarding the scope of the indemnification set forth in its certificate of incorporation and bylaws and
to provide additional procedural protections.
The
foregoing discussion of the Company’s amended and restated certificate of incorporation and amended and restated bylaws
and Section 145 of the DGCL is not intended to be exhaustive and is qualified in its entirety by each of those documents
and that statute.
(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:
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i.
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To
include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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ii.
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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 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement.
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iii.
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To
include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
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Provided
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933,
each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 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 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 Act and will be governed by the final adjudication of such issue.