Item 6. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 145 of the Delaware General
Corporation Law (the “DGCL”) provides that a corporation may indemnify any person who was or is, 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 such corporation), by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include
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, provided 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 such corporation, and, with respect to any criminal actions
and proceedings, had no reasonable cause to believe that such person’s conduct was unlawful.
In addition, under Section 145 of the DGCL,
a Delaware corporation may indemnify any person who was or is, or is threatened to be made, a party to any threatened, pending
or contemplated action or suit by or in the right of such 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 such corporation, or is or was serving at the request of such
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 such corporation and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to such corporation unless and only to the extent
that the 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 Court of Chancery or such other court shall deem proper.
To the extent that an officer or director
of a corporation has been successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to
above, or in defense of any claim, issue or matter therein, the corporation must indemnify such person against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
Certificate of Incorporation, as amended,
Amended and Restated By-Laws, and Insurance
The Company’s Certificate of Incorporation,
as amended, provides that the Company may, to the fullest extent permitted by Section 145 of the DGCL, indemnify any and all persons
whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities or other matters
referred to in or covered by said section. The Company’s Certificate of Incorporation, as amended, further provides that
no director will be personally liable to the Company or its stockholders for monetary damages for any breach of fiduciary duty
by such director as a director; provided, however, that a director will be liable to the extent provided by applicable law (i)
for breach of such director’s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL, or (iv)
for any transaction from which the director derived an improper personal benefit.
The Company’s Amended and Restated
By-laws also provide for indemnification of the Company’s officers and directors to the fullest extent permitted by applicable
law.
In addition, the Company maintains directors’
and officers’ liability insurance policies.
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 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 a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective 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)
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 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) 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 that is incorporated by
reference in this 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 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 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.
