Item 6.
Indemnification of Directors and Officers
The Registrant’s Amended and Restated
Certificate of Incorporation (“Certificate of
Incorporation”) and
Bylaws contain provisions relating to the limitation of liability
and indemnification of directors and officers. The
Registrant’s Certificate of Incorporation provides that a
director will not be personally liable to the Registrant or its
shareholders for monetary damages for breach of fiduciary duty as a
director, except for liability:
●
for any breach of the director’s duty of loyalty to the
Registrant or its shareholders;
●
for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
●
under Section 174 of the Delaware General Corporation Law (the
“ DGCL”); or
●
for any transaction from which the director derived any improper
personal benefit.
The
Registrant’s Certificate of Incorporation also provides that
if the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of the Registrant’s directors will be
eliminated or limited to the fullest extent permitted by the
DGCL.
The Registrant’s Bylaws provide that it will
indemnify its directors and officers to the fullest extent not
prohibited by the DGCL; provided,
however, that the Registrant
may limit the extent of such indemnification by individual
contracts with its directors and executive officers; and provided,
further, that the Registrant is not required to indemnify any
director or executive officer in connection with any proceeding (or
part thereof) initiated by such person or any proceeding by such
person against the Registrant or its directors, officers, employees
or other agents unless:
●
such indemnification is expressly required to be made by
law;
●
the proceeding was authorized by the board of directors;
or
●
such indemnification is provided by the Registrant, in its sole
discretion, pursuant to the powers vested in the Registrant under
the DGCL.
The
Registrant’s Bylaws provide that the Registrant shall
advance, prior to the final disposition of any proceeding, promptly
following request therefor, all expenses by any director or
executive officer in connection with any such proceeding upon
receipt of any undertaking by or on behalf of such person to repay
said amounts if it should be determined ultimately that such person
is not entitled to be indemnified under Article V of the
Registrant’s Bylaws or otherwise. Notwithstanding the
foregoing, unless otherwise determined, no advance shall be made by
the Registrant if a determination is reasonably and promptly made
by the board of directors by a majority vote of a quorum of
directors who were not parties to the proceeding, or if such a
quorum is not obtainable, or even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in
a written opinion, that the facts known to the decision-making
party at the time such determination is made demonstrate clearly
and convincingly that such person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to the
Registrant’s best interests.
The
Registrant’s Bylaws also authorize it to purchase insurance
on behalf of any person required or permitted to be indemnified
pursuant to its Bylaws.
Section
145(a) of the DGCL authorizes a corporation to indemnify any person
who was or is a party, or is threatened to be made a party, to a
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.
Section
145(b) of the DGCL provides in relevant part 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 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.
The
DGCL also provides that indemnification under Section 145(d) can
only be made upon a determination that indemnification of the
present or former director, officer or employee or agent is proper
in the circumstances because such person has met the applicable
standard of conduct set forth in Section 145(a) and
(b).
Section
145(g) of the DGCL also empowers a corporation 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 Section 145 of
the DGCL.
Section
102(b)(7) of the DGCL permits a corporation to provide for
eliminating or limiting the personal liability of one of its
directors for any monetary damages related to a breach of fiduciary
duty as a director, as long as the corporation does not eliminate
or limit the liability of a director for acts or omissions which
(1) which breached the director’s duty of loyalty to the
corporation or its shareholders, (2) which were not in good faith
or which involve intentional misconduct or knowing violation of
law, (3) under Section 174 of the DGCL; or (4) from which the
director derived an improper personal benefit.
The
Registrant has obtained directors’ and officers’
insurance to cover its directors and officers for certain
liabilities.
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; and
(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;
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, 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 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; and
(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 (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 this 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 SEC 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.