Item 5. Interests of Named Experts and Counsel
Item 6. Indemnification of Directors and Officers
Section 102(b)(7) of the Delaware General Corporation
Law authorizes a corporation in its certificate of incorporation to eliminate or limit personal liability of directors of the corporation
for violations of the directors’ fiduciary duty of care. However, directors remain liable for breaches of duties of loyalty, failing
to act in good faith, engaging in intentional misconduct, knowingly violating a law, paying a dividend or approving a stock repurchase
which was illegal under Delaware General Corporation Law Section 174 or obtaining an improper personal benefit. In addition, equitable
remedies for breach of fiduciary duty of care, such as injunction or recession, are available.
Our restated certificate of incorporation eliminates
the personal liability of the members of our board of directors to the fullest extent permitted by law.
In addition, our restated certificate of incorporation
provides for indemnification of our officers and directors to the fullest extent permitted by law.
Section 145 of the Delaware General Corporation
Law empowers a corporation to indemnify any person who was or is 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, by reason of the fact that he is or
was a director, officer or agent of the corporation or another enterprise if serving at the request of the corporation. Depending on the
character of the proceeding, a corporation may indemnify against expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person indemnified acted
in good faith in respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. In the case
of an action by or in the right of the corporation, no indemnification may be made with respect to 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 that despite the adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper. Section 145 further provides that to the extent a director,
officer, employee or agent of a corporation has been successful in the defense of any action, suit or proceeding referred to above or
in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually
and reasonably incurred by him in connection therewith.
We have entered into indemnification agreements
with each of our directors and officers under which we agree, in effect, to indemnify them to the fullest extent permitted by Delaware
law. Such indemnification agreements also require us to advance expenses, as incurred, to our directors and officers in connection with
legal proceedings, subject to limited exceptions.
We also hold an insurance policy covering directors
and officers under which the insurer agrees to pay, subject to policy retentions and with some exclusions, for any claim made against
our directors and officers for a wrongful act that they may become legally obligated to pay or for which we are is required to indemnify
them.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended, or the Securities Act, may be permitted for directors, officers and controlling persons
of the Company under the above provisions, or otherwise, the Commission has advised us that, in its opinion, 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 Company of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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.
Item 9. Undertakings
(a)
The Company 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 of 1933;
(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;
(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 periodic reports
filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration statement;
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, 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 file a post-effective amendment to remove from registration any of the securities being registered that remain unsold at the
termination of the offering.
(b)
The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of
the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company 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 of 1933 and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company
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 of 1933 and will be governed
by the final adjudication of such issue.