ITEM 6.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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The Delaware General Corporation Law (DGCL) and certain
provisions of the Registrants bylaws under certain circumstances provide for indemnification of the Registrants officers, directors and controlling persons against liabilities which they may incur in such capacities. A summary of the
circumstances in which such indemnification is provided for is contained herein, but this description is qualified in its entirety by reference to the Registrants bylaws.
Section 145 of the DGCL permits a corporation to indemnify any director, officer, employee or agent of the corporation against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the
corporation, if such person acted in good faith and in a manner that 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, if he or she had no reason
to believe his or her conduct was unlawful.
A similar standard is applicable in the case of derivative actions (i.e., actions brought by or on behalf of
the corporation), except that indemnification only extends to expenses (including attorneys fees) actually and reasonably incurred in connection with the defense or settlement of such action, and the statute requires court approval before
there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporations certificate of
incorporation, bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
The Registrants bylaws provide for the
indemnification described above and requires that any such indemnification only be made by the Registrant upon a determination that the applicable standard of conduct has been met, which determination shall be made (a) by the Board of
Directors, by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (c) by the stockholders.
The Registrants bylaws also authorize the Board of Directors, in
its discretion, to pay the expenses of any such action in advance of the final disposition of such action upon a written undertaking by such indemnitee to repay such amounts if it shall ultimately be determined that he or she is not entitled to
indemnification under the standard set by the DGCL and the Registrants bylaws.
Section 102(b)(7) of the DGCL permits, and the
Registrants Amended and Restated Certificate of Incorporation provide, that no director shall be personally liable to the Registrant or its stockholders for monetary damages for such a breach of fiduciary duty as a director, except for
liabilities arising:
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from any breach of the directors duty of loyalty to the Registrant or its stockholders;
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from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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under Section 174 of the DGCL (unlawful payment of dividend or unlawful stock purchase or redemption); and
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from any transaction from which the director derived an improper personal benefit.
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The Registrant has entered
into an indemnification agreement with each of its directors and executive officers. The indemnification agreements provide indemnification to each director or executive officer (the Indemnitee) against all expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee, or on his or her behalf if the Indemnitee is, or is threatened to be made, a party to or participant in any proceeding related to his or her status
as a director and/or executive officer of the Registrant, as long as the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Registrant, and with respect to any
criminal proceeding, had no reasonable cause to believe the Indemnitees conduct was unlawful. For proceedings by or in the right of the Registrant, indemnification is provided as set forth above; provided, however, if applicable law so
provides, no indemnification against such expenses will be made in respect of any claim, issue or matter in such proceeding as to which Indemnitee shall have been adjudged to be liable to the Registrant unless and to the extent that the Court of
Chancery of the State of Delaware shall determine that such indemnification may be made.
Section 145(g) of the DGCL grants the power to the Registrant to purchase and maintain insurance which
protects the Registrants officers and directors against any liabilities incurred in connection with their service in such a position, and such a policy may be obtained by the Registrant.
A stockholders investment may be adversely affected to the extent the Registrant pays the costs of settlement and damage awards against directors and
officers as required by these indemnification provisions. At present, there is no pending litigation or proceeding involving any of the Registrants directors, officers or employees regarding which indemnification is sought, nor is the
Registrant aware of any threatened litigation that may result in claims for indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the SEC, this indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
(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 this 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 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 this registration statement or any material change to such information in the registration statement;
provided, however, that the
undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange
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; and
(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 further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act and, where applicable, each filing of the Plans annual report
pursuant to Section 15(d) under 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 therein, and the offering of such
securities at the 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 Securities and Exchange 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 issues.