Item 3. Incorporation of Documents by Reference.
Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, the following documents, which have been previously filed with the Commission, are incorporated by reference in this Registration Statement and will be deemed to be a part hereof:
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed on February 20, 2020;
(b) The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, filed on May 7, 2020;
(c) The Registrant’s Current Reports on Form 8-K filed on January 6, 2020, February 11, 2020, April 2, 2020, May 15, 2020, May 18, 2020, May 21, 2020 and June 1, 2020; and
(d) The description of the Registrant’s common stock attached as Exhibit 4.7 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed on February 20, 2020, including any subsequently filed amendments and reports updating such description.
Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, all documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the termination of the offering made hereby will be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article Seventh of the Registrant’s Amended and Restated Certificate of Incorporation provides that no director of the Registrant will be personally liable to the Registrant or its stockholders for monetary damages for breach of the director’s duty as a director, except that a director will remain liable to the extent provided by law if (i) the director breaches his duty of loyalty, (ii) the director commits acts or omissions not in good faith or that involve intentional misconduct or knowing violation of law, (iii) the director violates section 174 of the Delaware General Corporation Law (“DGCL”), or (iv) the director derives an improper personal benefit in any transaction. Article Seventh further provides that the Registrant will indemnify to the fullest extent allowed by law, and will advance expenses to,
any person who is (or is threatened to be) a defendant or witness in a proceeding by reason of the fact that he is or was a director or officer of the Registrant or is or was, at the request of the Registrant, serving another entity in any capacity.
Section 16 of Article V of the Registrant’s Amended and Restated By-Laws states that the Registrant will indemnify any person who is or was a party (or is threatened to be made a party) in any action by reason of being a director or officer of the Registrant or of another entity at the Registrant’s request, in accordance with and to the fullest extent permitted by the DGCL, including the advancement of expenses. The indemnity provided in Section 16 extends to the spouse or former spouse, heirs, executors or administrators of the covered director or officer. In addition to certain other conditions described in Section 16, the covered director or officer must permit the Registrant to participate in the proceeding, at its expense and through counsel of its own choosing, and must receive approval by the Registrant and the Registrant’s board of directors of any proposed settlement in order to receive indemnification.
The Registrant has entered into indemnification agreements with certain officers and each director (the “Indemnitees”) of the Registrant. Each indemnification agreement generally requires the Registrant to indemnify each Indemnitee for liabilities incurred to the fullest extent permitted by applicable law. Also, as permitted under applicable law, the indemnification agreements require the Registrant to advance reasonable expenses in defending any action provided that the Indemnitee may be required to reimburse the Registrant for the amounts if the Indemnitee ultimately is determined not to be entitled to indemnification from the Registrant. The Registrant will also indemnify each Indemnitee for costs and expenses in any action to establish Indemnitee’s right to indemnification, whether or not Indemnitee ultimately prevails, subject to certain exceptions. In general, the disinterested directors on the Registrant’s board of directors have the authority to determine each Indemnitee’s right to indemnification. However, such determination may also be made by independent legal counsel if there are no disinterested directors on the Registrant’s board of directors or if the Indemnitee so elects. The indemnification agreements require, subject to certain exceptions, that each Indemnitee be covered by any insurance policy providing for directors’ and officers’ liability insurance coverage maintained by the Registrant to the extent coverage for such Indemnitee under such policy is available on commercially reasonable terms
Item 7. Exemption from Registration Claimed.
Not applicable.
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 percent 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) 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 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 (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 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 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.