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Item 6.
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Indemnification
of Directors and Officers
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Under Section 145
of the Delaware General Corporation Law (the “
DGCL
”), 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 such corporation), by reason of the fact that the person
is or was an officer, director, 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 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. In actions brought by or in the right of the corporation, a corporation
may indemnify such person 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 such person shall have been adjudged to be liable to the 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 such person
has been successful on the merits or otherwise in defense of any such action, suit or proceeding referred to above, or in defense
of any claim, issue or matter therein, he or she is entitled to indemnification for expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection therewith. The indemnification and advancement of expenses provided for or
granted pursuant to Section 145 of the DGCL is not exclusive of any other rights of indemnification or advancement of expenses
to which those seeking indemnification or advancement may be entitled. Further, a corporation may 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 Section 145 of the DGCL.
Section 102(b)(7) of
the DGCL enables a corporation in its certificate of incorporation to eliminate or limit 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 director's 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) pursuant to Section 174 of the DGCL (providing for liability for directors
for unlawful payment of dividends or unlawful stock purchases or redemptions); or (iv) for any transaction from which the director
derived an improper personal benefit. Advancement or reimbursement of expenses prior to a final disposition requires a written
affirmation that the foregoing criteria were met and an undertaking to repay any advances if it is ultimately determined that the
criteria were not met.
The Registrant’s
certificate of incorporation provides that a director will not be personally liable for monetary damages for breach of fiduciary
duty as a director, except liability for (i) any breach of the director’s duty of loyalty to the Registrant or its shareholders;
(ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) unlawful
payments of dividends or unlawful stock repurchases or redemptions; or (iv) any transaction from which the director derived an
improper personal benefit.
Further, the Registrant’s
certificate of incorporation and bylaws provide, among other things, that each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative,
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 Registrant or is or was serving at the request of the Registrant 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 Registrant to the
fullest extent authorized by the DGCL, against all expense, liability and loss (including attorneys’ fees, judgments, liens,
amounts paid or to be paid in settlement and excise taxes or penalties arising under the Employee Retirement Income Security Act
of 1974) 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; provided, however, that the Registrant shall indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Registrant’s
board of directors.
The Registrant’s
certificate of incorporation and bylaws provide that the right to indemnification shall include the right to be paid by the Registrant
the expenses (including attorneys’ fees) incurred in defending such proceeding in advance of its final disposition; provided,
however, that if the DGCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as such
in advance of the final disposition of a proceeding shall be made only upon delivery to the Registrant of an undertaking, by or
on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such director or officer is not entitled to be indemnified under the
certificate of incorporation, bylaws or otherwise; and provided, further, that such advancement of expenses incurred by any person
other than a director or officer shall be made only upon the delivery of an undertaking to the foregoing effect and may be subject
to such other conditions as the Registrant’s board of directors may deem advisable. The Registrant’s certificate of
incorporation and bylaws also permit it to purchase and maintain insurance to protect itself and any director, officer, employee
or agent of the Registrant or another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise
against any such expense, liability or loss, whether or not the Registrant would have the power to indemnify such person against
such expense, liability or loss under the DGCL.
The Registrant has
in the past and may in the future enter into agreements to indemnify its directors, executive officers and other employees as determined
by its board of directors. These agreements will provide for the indemnification of directors and officers to the fullest extent
permitted by Delaware law, whether or not expressly provided for in the Registrant’s bylaws, and govern the process by which
claims for indemnification are considered.
(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 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 twenty percent (20%) change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(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,
the paragraphs (1)(i) and 1(ii) of this section do not apply if the Registration Statement is on Form S-8, and 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 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 that 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 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 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 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.
