Item 6.
Indemnification of Directors
and Officers
.
We are a Delaware corporation. Subsection
(b)(7) of Section 102 of the Delaware General Corporation Law (the “DGCL”) enables a corporation in its original certificate
of incorporation or an amendment thereto to eliminate or limit the personal liability of a director to the corporation or its stockholders
for 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 of 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.
Subsection (a) of Section 145 of the
DGCL empowers a corporation to indemnify any present or former director, officer, employee or agent of the corporation, or any
individual who is or was serving at the corporation’s request as a director, officer, employee or agent of another organization,
partnership, joint venture, trust or other enterprise, 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), 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 provided that such
director, officer, employee or agent acted in good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal action or proceeding, provided further that such director,
officer, employee or agent had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a
corporation to indemnify any present or former director, officer, employee or agent of the corporation, or any individual who is
or was serving at the request of the corporation as a director, officer, employee or agent of another organization, partnership,
joint venture, trust or other enterprise, 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
such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such action or suit provided that such person acted in good
faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification
may 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 of 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.
Subsection (c) of Section 145 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 the 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. Subsection (f) of Section 145 also provides that indemnification and advancement
of expenses provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled. Subsection (g) of Section 145 also empowers the corporation to purchase
and maintain insurance on behalf of a present or former director, officer, employee or agent of the corporation, or any individual
who is or was serving at the corporation’s request as a director, officer or employee of another organization, partnership,
joint venture, trust or other enterprise, against any liability asserted against such person or 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 liabilities under Section 145.
Our Tenth Amended and Restated Certificate
of Incorporation, as amended, provides that no director shall be personally liable to us or our stockholders for monetary damages
for any breach of fiduciary duty by such director as a director, to the fullest extent permitted by the DGCL. Our By-laws (as amended
and restated) provide for indemnification of directors and, if authorized by our board of directors, officers, employees and agents
and any and all persons whom the board of directors has the power to indemnify to the full extent and in the manner permitted by
the DGCL. Section 145 of the DGCL makes provision for such indemnification in terms sufficiently broad to cover officers and directors
under certain circumstances for liabilities arising under the Securities Act.
We have entered into indemnification
agreements with our directors and certain of our officers which provide indemnification under certain circumstances for acts and
omissions which may not be covered by any directors’ and officers’ liability insurance.
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 Securities and Exchange 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; 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) above 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.
(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 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 Act and will be governed by the final adjudication of such issue.