Item 6. Indemnification of Directors
and Officers.
We are incorporated
under the laws of the State of Delaware. Reference is made to Section 102(b)(7) of the Delaware General Corporation Law, or the
DGCL, which enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director for violations of the director’s fiduciary duty, except (1) for any breach of the director’s
duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) pursuant to Section 174 of the DGCL, which provides for liability of directors for
unlawful payments of dividends or unlawful stock purchase or redemptions or (4) for any transaction from which a director derived
an improper personal benefit.
Section 145(a) of
the DGCL provides, in general, 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, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), because he or she 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 he or she 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, had no reasonable cause to believe his or her conduct was
unlawful.
Section 145(b) of
the DGCL provides, in general, 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 because 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 he or she 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, except that no indemnification shall be made with respect to
any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances
of the case, he or she is fairly and reasonably entitled to indemnity for such expenses which the adjudicating court shall deem
proper.
Section 145(g) of
the DGCL provides, in general, that a corporation may 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 his or her status as such, whether or not the corporation
would have the power to indemnify the person against such liability under Section 145 of the DGCL.
Our certificate of
incorporation provides that no director of our company shall be personally liable to us or our stockholders for monetary damages
for any breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty
to us or our stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law, (3) in respect of unlawful dividend payments or stock redemptions or repurchases or other distributions pursuant to Section
172 of the DGCL, or (4) for any transaction from which the director derived an improper personal benefit. In addition, our certificate
of incorporation provides that if the DGCL is amended to authorize the further elimination or limitation of the liability of directors,
then the liability of a director of our company shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended.
Our certificate of
incorporation further provides that any repeal or modification of such article by our stockholders or an amendment to the DGCL
will not adversely affect any right or protection existing at the time of such repeal or modification with respect to any acts
or omissions occurring before such repeal or modification of a director serving at the time of such repeal or modification.
Our bylaws provide
that we will indemnify each of our directors and officers, certain employees and agents, to the fullest extent permitted by the
DGCL, as the same may be amended (except that in the case of an amendment, only to the extent that the amendment permits us to
provide broader indemnification rights than the DGCL permitted us to provide prior to such the amendment), against any and all
expenses, judgments, penalties, fines and amounts reasonably paid in settlement that are incurred by the director, officer or such
employee or on the director’s, officer’s or employee’s behalf in connection with any threatened, pending or completed
proceeding or any claim, issue or matter therein, to which he or she is or is threatened to be made a party because he or she is
or was serving as a director, officer or employee of our company, or at our request as a director, partner, trustee, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, if he or she acted
in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of our company and, with
respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. Our bylaws further provide
for the advancement of expenses to each of our directors and, in the discretion of the board of directors, to certain officers
and employees.
In addition, our bylaws
provide that the right of each of our directors and officers to indemnification and advancement of expenses shall be a contract
right and shall not be exclusive of any other right now possessed or hereafter acquired under any statute, provision of our certificate
of incorporation or bylaws, agreement, vote of stockholders, or otherwise. Furthermore, our bylaws authorize us to provide insurance
for our directors, officers and employees against any liability, whether or not we would have the power to indemnify such person
against such liability under the DGCL or the bylaws.
We have entered into
indemnification agreements with each of our directors and our executive officers. These agreements provide that we will indemnify
each of our directors and such officers to the fullest extent permitted by law and our certificate of incorporation and bylaws.
We also maintain a
general liability insurance policy which covers certain liabilities of directors and officers of our company arising out of claims
based on acts or omissions in their capacities as directors or officers.
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 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. 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 SEC 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; or
(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) shall not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed 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 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 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.