Item
6.
Indemnification of Directors and Officers
.
The
Registrant’s amended and restated certificate of incorporation provides that no director will be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except as required by applicable
law, as in effect from time to time. Currently, Delaware law requires that liability be imposed for the following:
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any
breach of the director’s duty of loyalty to the registrant or its stockholders;
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any
act or omission not in good faith or which involved intentional misconduct or a knowing violation of law;
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unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation
Law; and
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any
transaction from which the director derived an improper personal benefit.
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As
a result, neither the Registrant nor its stockholders have the right, through stockholders’ derivative suits on the Registrant’s
behalf, to recover monetary damages against a director for breach of fiduciary duty as a director, including breaches resulting
from grossly negligent behavior, except in the situations described above.
The
Registrant’s amended and restated certificate of incorporation provides that, to the fullest extent permitted by law, the
Registrant will indemnify any of the officers or directors of the Registrant against all damages, claims and liabilities arising
out of the fact that the person is or was a director or officer, or served any other enterprise at the Registrant’s request
as a director or officer. The Registrant will reimburse the expenses, including attorneys’ fees, incurred by a person indemnified
by this provision when the Registrant receives an undertaking to repay such amounts if it is ultimately determined that the person
is not entitled to be indemnified by the Registrant. Amending this provision will not reduce the Registrant’s indemnification
obligations relating to actions taken before an amendment.
The
Registrant has also entered into separate indemnification agreements with its executive officers and directors, which require
the Registrant to indemnify them against liabilities to the fullest extent permitted by law and its amended and restated certificate
of incorporation or amended and restated bylaws.
The
Registrant maintains standard policies of insurance under which coverage is provided to its directors and officers against loss
arising from claims made by reason of breach of duty or other wrongful act.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling
the Registrant pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the Commission,
such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
The
above discussion of the Registrant’s amended and restated certificate of incorporation, amended and restated bylaws, and
indemnification agreements and the Delaware General Corporation Law is not intended to be exhaustive and is qualified in its entirety
by such amended and restated certificate of incorporation, amended and restated bylaws, indemnification agreements and statutes.
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; 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.
(4) That,
for the purpose of determining the liability of the Registrant under the Securities Act to any purchaser in the initial distribution
of the securities, in a primary offering of securities of the Registrant pursuant to this Registration Statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424
under the Securities Act;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the
Registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the Registrant
or its securities provided by or on behalf of the Registrant; and
(iv)
Any other communication that is an offer in the offering made by the Registrant to the purchaser.
(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 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.