ITEM 6.
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Indemnification of Directors and Officers.
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Section 145 of the Delaware
General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals
against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason
of such person being or having been a director, officer, employee or agent to the corporation. The Delaware General Corporation
Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise.
Section 102(b)(7) of the
Delaware General Corporation Law provides that a corporation may adopt a provision in its certificate of incorporation eliminating
or limiting the personal liability of a director of the corporation to the corporation or its stockholders for monetary damages
for breaches of fiduciary duty as a director, except for liability for any: (i) breach of the director’s duty of loyalty
to the corporation or its stockholders; (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) unlawful payment of dividends or unlawful stock purchases or redemptions; or (iv) transaction from which
the director derives an improper personal benefit.
Our certificate of incorporation,
as amended (our “Certificate of Incorporation”), provides to the fullest extent permitted by Delaware law that our
directors shall not be personally liable to us or our stockholders for monetary damages for breach of such director’s fiduciary
duty. The effect of this provision of our Certificate of Incorporation is to eliminate our right and the right of our stockholders
(through stockholders’ derivative suits on behalf of our Company) to recover damages against a director for breach of the
fiduciary duty of care as a director or officer (including breaches resulting from negligent or grossly negligent behavior), except
under certain situations defined by statute. Our Certificate of Incorporation also provides that if the Delaware General Corporation
Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability
of our directors shall be eliminated to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Additionally, our Certificate
of Incorporation provides that we have the power to indemnify, to the extent permitted by the Delaware General Corporation Law
(in its present form or as it may in be amended in the future), any of our employees or agents who was or is a party or is threatened
to be made a party to any proceeding by reason of the fact that he or she is or was our director, officer, employee or agent of
or is or was serving at our request as a director, officer, employee or agent of another corporation or entity, including service
with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with any such proceeding.
Section 9.3 of our by-laws
(our “By-Laws”) provides for the indemnification of our directors, officers and employees to the fullest extent permitted
by the Delaware General Corporation Law.
We believe that the provisions
in our By-Laws and Certificate of Incorporation providing for the elimination of personal monetary liability of directors and the
indemnification of directors and officers, as applicable, are necessary to attract and retain qualified persons as directors and
officers.
We have entered into an
indemnification agreement (each, an “Indemnification Agreement”) with each of our directors and executive officers.
In general, the Indemnification Agreement obligates us to indemnify a director or executive officer, to the fullest extent permitted
by applicable law, for certain expenses, including attorneys’ fees, judgments, penalties, fines and settlement amounts actually
and reasonably incurred by them in any action or proceeding arising out of their services as one of our directors or executive
officers, or any of our subsidiaries or any other company or enterprise to which the person provides services at our request. In
addition, the Indemnification Agreement provides for the advancement of expenses incurred by the indemnitee in connection with
any covered proceeding to the fullest extent permitted by applicable law. The rights provided by the Indemnification Agreement
are in addition to any other rights to indemnification or advancement of expenses to which the indemnitee may be entitled under
applicable law, our Certificate of Incorporation, By-Laws, or otherwise.
We maintain insurance under
which coverage is provided to our directors and officers against certain losses arising from claims of breach of duty.
The preceding summaries
are subject to the full text of the applicable statutes, our Certificate of Incorporation, our By-Laws and the Indemnification
Agreements referenced above and are qualified in their entirety by reference to such documents.
(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 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 this 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;
(iii) 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;
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 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 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, each filing of the registrant’s annual report pursuant to Sections
13(a) or 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 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.