Not applicable.
| Item 6. | Indemnification of Directors and Officers |
Restated Certificate of
Incorporation
Article EIGHTH of the Company’s
Restated Certificate of Incorporation provides that no director of the Company shall be personally liable for any monetary damages for
any breach of fiduciary duty as a director, except to the extent that the Delaware General Corporation Law (the “DGCL”)
prohibits the elimination or limitation of liability of directors for breach of fiduciary duty.
Article NINTH of the Company’s
Restated Certificate of Incorporation provides that a director or officer of the Company (a) shall be indemnified by the Company against
all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement incurred in connection with any litigation
or other legal proceeding (other than an action by or in the right of the Company) brought against him by virtue of his position as a
director or officer of the Company if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful
and (b) shall be indemnified by the Company against all expenses (including attorneys’ fees) and amounts paid in settlement incurred
in connection with any action by or in the right of the Company brought against him by virtue of his position as a director or officer
of the Company if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the
Company, except that no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be
liable to the Company, unless a court determines that, despite such adjudication but in view of all of the circumstances, he is entitled
to indemnification of such expenses. Notwithstanding the foregoing, to the extent that a director or officer has been successful, on the
merits or otherwise, including, without limitation, the dismissal of an action without prejudice, he is required to be indemnified by
the Company against all expenses (including attorneys’ fees) incurred in connection therewith. Expenses shall be advanced to a director
or officer at his request, provided that he undertakes to repay the amount advanced if it is ultimately determined that he is not entitled
to indemnification for such expenses.
Indemnification is required
to be made unless the Company determines that the applicable standard of conduct required for indemnification has not been met. In the
event of a determination by the Company that the director or officer did not meet the applicable standard of conduct required for indemnification,
or if the Company fails to make an indemnification payment within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to whether such person is entitled to indemnification. As a condition
precedent to the right of indemnification, the director or officer must give the Company written notice of the action for which indemnity
is sought and the Company has the right to participate in such action or assume the defense thereof.
Article NINTH of the Company’s
Restated Certificate of Incorporation further provides that the indemnification provided therein is not exclusive and provides that in
the event that the Delaware General Corporation Law is amended to expand the indemnification permitted to directors or officers the Company
must indemnify those persons to the full extent permitted by such law as so amended.
General Corporation Law
of the State of Delaware
Under Section 145 of the DGCL,
the Company is empowered to indemnify its directors and officers in the circumstances therein provided. Certain portions of Section 145
are summarized below:
Section 145(a) of the DGCL
provides 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) by reason of the fact that such 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), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and in criminal actions
where such person had no reasonable cause to believe such person’s conduct was unlawful.
Section 145(b) of the
DGCL provides 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 by reason
of the fact that such 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 such person in connection
with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect
of any claim, issue or matter in which such person shall have been adjudged to be liable to the corporation unless and only to the
extent that the Delaware 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 the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
Under Section 145(c) of the
DGCL, indemnification against expenses (including attorneys’ fees) actually and reasonably incurred by directors, officers, employees
and agents is required in those cases where the person to be indemnified has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 145(a) and (b), or in defense of any claim, issue or matter therein.
Section 145(d) of the DGCL
provides that any indemnification under Section 145(a) and (b) (unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper
in the circumstances because such person has met the applicable standard of conduct set forth in Section 145(a) and (b). Such determination
shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the
directors who were not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
Section 145(e) of the DGCL
provides that expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative
or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the corporation as authorized in Section 145. Such expenses (including attorneys’
fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
Section 145(f) of the DGCL
provides that the 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 under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in
another capacity while holding such office.
Under Section 145(g) of the
DGCL, 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 who, while serving in such capacity, is or was at the request of the corporation, a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, against liability asserted against 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 provide indemnity under Section 145. The Company has obtained insurance which, subject to certain exceptions, insures the directors
and officers of the Company and its subsidiaries.
Indemnification Agreements
and D&O Insurance
The Company has entered into
indemnification agreements with its directors and officers. In general, these agreements provide that the Company will indemnify the director
or officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or officer of the Company or
in connection with their service at the Company’s request for another corporation or entity. The indemnification agreements also
provide for procedures that will apply in the event that a director or officer makes a claim for indemnification and establish certain
presumptions that are favorable to the director or officer. Additionally, the Company has obtained directors and officers insurance for
the benefit of its directors and its officers.
The above discussion of the
Company’s Restated Certificate of Incorporation, Indemnification Agreements, and of Section 145 of the DGCL is not intended to be
exhaustive and is respectively qualified in its entirety by such Restated Certificate of Incorporation, Indemnification Agreements, and
applicable statutes.
(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.
(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)(i) and (a)(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 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 herein, 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 (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 the 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.
