Item
6. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law provides for, under certain circumstances, the indemnification of officers, directors,
employees and agents against liabilities that they may incur in such capacities. A summary of the circumstances in which such
indemnification provided for is contained herein, but that description is qualified in its entirety by reference to the relevant
Section of the Delaware General Corporation Law.
In
general, the statute provides that any director, officer, employee or agent of a corporation may be indemnified against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred in a proceeding
(including any civil, criminal, administrative or investigative proceeding) to which the individual was a party by reason of such
status. Such indemnity may be provided if the indemnified person’s actions resulting in the liabilities: (i) were taken
in good faith; (ii) were reasonably believed to have been in or not opposed to the company’s best interest; and (iii) with
respect to any criminal action, such person had no reasonable cause to believe the actions were unlawful. Unless ordered by a
court, indemnification generally may be awarded only after a determination of independent members of the Board of Directors or
a committee thereof, by independent legal counsel or by vote of the stockholders that the applicable standard of conduct was met
by the individual to be indemnified.
The
statutory provisions further provide that to the extent a director, officer, employee or agent is wholly successful on the merits
or otherwise in defense of any proceeding to which such person was a party, such person is entitled to receive indemnification
against expenses, including attorneys’ fees, actually and reasonably incurred in connection with the proceeding.
Indemnification
in connection with a proceeding by or in the right of the Company in which the director, officer, employee or agent is successful
is permitted only with respect to expenses, including attorneys’ fees actually and reasonably incurred in connection with
the defense. In such actions, the person to be indemnified must have acted in good faith, in a manner believed to have been in
the Company’s best interest and must not have been adjudged liable to the Company 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, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expense which the Court of Chancery or such other court shall deem proper. Indemnification is otherwise prohibited in connection
with a proceeding brought on behalf of the Company in which a director is adjudged liable to the Company, or in connection with
any proceeding charging improper personal benefit to the director in which the director is adjudged liable for receipt of an improper
personal benefit.
Delaware
law authorizes the Company to reimburse or pay reasonable expenses incurred by a director, officer, employee or agent in connection
with a proceeding in advance of a final disposition of the matter. Such advances of expenses are permitted if the person furnishes
to the Company a written agreement to repay such advances if it is determined that such person is not entitled to be indemnified
by the Company.
The
statutory section cited above further specifies that any provisions for indemnification of or advances for expenses does not exclude
other rights under the Company’s Amended and Restated Certificate of Incorporation, Bylaws, resolutions of the Company’s
stockholders or disinterested directors, or otherwise. These indemnification provisions continue for a person who has ceased to
be a director, officer, employee or agent of the corporation and inure to the benefit of the heirs, executors and administrators
of such persons.
The
statutory provision cited above also grants the power to the Company to purchase and maintain insurance policies that protect
any director, officer, employee or agent against any liability asserted against or incurred by him in such capacity arising out
of his status as such. Such policies may provide for indemnification whether or not the corporation would otherwise have the power
to provide for it.
Article
10 of the Company’s Bylaws and Article 8 of the Company’s Amended and Restated Certificate of Incorporation provide
that the Company will indemnify the Company’s directors, officers, employees and agents to the fullest extent permitted
by the Delaware General Corporation Law. Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company understands that in
the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
The
Company has purchased directors’ and officers’ liability insurance in order to limit the exposure to liability for
indemnification of directors and officers, including liabilities under the Securities Act.