Item
6. Indemnification of Directors and Officers.
Our
Charter provides that all of our directors, officers, employees and agents shall be entitled to be indemnified by us to the fullest extent
permitted by Section 145 of the DGCL. Section 145 of the DGCL concerning indemnification of officers, directors, employees and agents
is set forth below.
Section
145. Indemnification of officers, directors, employees and agents; insurance.
(a)
A corporation shall have power to 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 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), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and
in a manner the person 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 the person’s conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner which the person 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 reasonable cause to believe that
the person’s conduct was unlawful.
(b)
A corporation shall have power to 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 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 the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall 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 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.
(c)
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 this section, or in 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.
(d)
Any indemnification under subsections (a) and (b) of this section (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 the person has met the applicable standard of conduct set forth in subsections (a) and (b) of
this section. 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 are 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.
(e)
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 this section. Such expenses (including attorneys’
fees) incurred by former officers and directors or other employees and agents may be so paid upon such terms and conditions, if any,
as the corporation deems appropriate.
(f)
The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section 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. A right to indemnification or to advancement of expenses arising under a
provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to such provision after
the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding
for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly
authorizes such elimination or impairment after such action or omission has occurred.
(g)
A corporation shall have power to 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 such person’s status as such, whether or not the corporation would have the
power to indemnify such person against such liability under this section.
(h)
For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence
had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who
is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate existence had continued.
(i)
For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the
request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the
corporation” as referred to in this section.
(j)
The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a person.
(k)
The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any by law, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have 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 of expenses incurred or paid by a director, officer or controlling person in a successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to the 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.
In
accordance with Section 102(b)(7) of the DGCL, our Charter provides that no director shall be personally liable to us or any of our stockholders
for monetary damages resulting from breaches of their fiduciary duty as directors, except to the extent such limitation on or exemption
from liability is not permitted under the DGCL. The effect of this provision of our Charter is to eliminate our rights and those of our
stockholders (through stockholders’ derivative suits on our behalf) to recover monetary damages against a director for breach of
the fiduciary duty of care as a director, including breaches resulting from negligent or grossly negligent behavior, except, as restricted
by Section 102(b)(7) of the DGCL. However, this provision does not limit or eliminate our rights or the rights of any stockholder to
seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a director’s duty of care.
If
the DGCL is amended to authorize corporate action further eliminating or limiting the liability of directors, then, in accordance with
our Charter, the liability of our directors to us or our stockholders will be eliminated or limited to the fullest extent authorized
by the DGCL, as so amended. Any repeal or amendment of provisions of our Charter limiting or eliminating the liability of directors,
whether by our stockholders or by changes in law, or the adoption of any other provisions inconsistent therewith, will (unless otherwise
required by law) be prospective only, except to the extent such amendment or change in law permits us to further limit or eliminate the
liability of directors on a retroactive basis.
Our
Charter also provides that we will, to the fullest extent authorized or permitted by applicable law, indemnify our current and former
officers and directors, as well as those persons who, while directors or officers of our corporation, are or were serving as directors,
officers, employees or agents of another entity, trust or other enterprise, including service with respect to an employee benefit plan,
in connection with any threatened, pending or completed proceeding, whether civil, criminal, administrative or investigative, against
all expense, liability and loss (including, without limitation, attorney’s fees, judgments, fines, ERISA excise taxes and penalties
and amounts paid in settlement) reasonably incurred or suffered by any such person in connection with any such proceeding.
Notwithstanding
the foregoing, a person eligible for indemnification pursuant to our Charter will be indemnified by us in connection with a proceeding
initiated by such person only if such proceeding was authorized by the Board, except for proceedings to enforce rights to indemnification.
The
right to indemnification which will be conferred by our Charter is a contract right that includes the right to be paid by us the expenses
incurred in defending or otherwise participating in any proceeding referenced above in advance of its final disposition, provided, however,
that if the DGCL requires, an advancement of expenses incurred by our officer or director (solely in the capacity as an officer or director
of our corporation) will be made only upon delivery to us of an undertaking, by or on behalf of such officer or director, to repay all
amounts so advanced if it is ultimately determined that such person is not entitled to be indemnified for such expenses under our Charter
or otherwise.
The
rights to indemnification and advancement of expenses will not be deemed exclusive of any other rights which any person covered by our
Charter may have or hereafter acquire under law, our Charter, our bylaws, an agreement, vote of stockholders or disinterested directors,
or otherwise.
Any
repeal or amendment of provisions of our Charter affecting indemnification rights, whether by our stockholders or by changes in law,
or the adoption of any other provisions inconsistent therewith, will (unless otherwise required by law) be prospective only, except to
the extent such amendment or change in law permits us to provide broader indemnification rights on a retroactive basis, and will not
in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such
inconsistent provision with respect to any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent
provision. Our Charter also permits us, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses
to persons other that those specifically covered by our Charter.
Our
current bylaws include the provisions relating to advancement of expenses and indemnification rights consistent with those which are
set forth in our Charter. In addition, our bylaws provide for a right of indemnity to bring a suit in the event a claim for indemnification
or advancement of expenses is not paid in full by us within a specified period of time. Our bylaws also permit us to purchase and maintain
insurance, at our expense, to protect us and/or any director, officer, employee or agent of our corporation or another entity, trust
or other enterprise against any expense, liability or loss, whether or not we would have the power to indemnify such person against such
expense, liability or loss under the DGCL.
Any
repeal or amendment of provisions of our bylaws affecting indemnification rights, whether by the Board, stockholders or by changes in
applicable law, or the adoption of any other provisions inconsistent therewith, will (unless otherwise required by law) be prospective
only, except to the extent such amendment or change in law permits us to provide broader indemnification rights on a retroactive basis,
and will not in any way diminish or adversely affect any right or protection existing thereunder with respect to any act or omission
occurring prior to such repeal or amendment or adoption of such inconsistent provision.
We
have entered into indemnification agreements with each of our officers and directors a form that was filed as Exhibit 10.5 of our Registration
Statement on Form S-1, filed with the SEC on January 4, 2021. These agreements require us to indemnify these individuals to the fullest
extent permitted under Delaware law against liabilities that may arise by reason of their service to us, and to advance expenses incurred
as a result of any proceeding against them as to which they could be indemnified.
