Item
6. Indemnification of Directors and Officers.
Our
third amended and restated certificate of incorporation 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 Delaware General Corporation Law (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 third amended and restated certificate of incorporation, as amended, will provide
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 third amended and restated certificate of incorporation, as amended, 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 third amended and restated certificate of incorporation, as amended, 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 third
amended and restated certificate of incorporation, as amended, 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
third amended and restated certificate of incorporation, as amended, 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 third amended and restated certificate of incorporation, as amended,
will be indemnified by us in connection with a proceeding initiated by such person only if such proceeding was authorized by our board
of directors, except for proceedings to enforce rights to indemnification.
The
right to indemnification conferred by our third amended and restated certificate of incorporation, as amended, 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 third amended and restated certificate of incorporation, as amended, 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
third amended and restated certificate of incorporation, as amended, may have or hereafter acquire under law, our third amended and restated
certificate of incorporation, as amended, our bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.
Any
repeal or amendment of provisions of our third amended and restated certificate of incorporation, as amended, 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 third amended and restated certificate of incorporation, as amended, will also
permit 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 third amended and restated certificate of incorporation, as amended.
Our
bylaws, include the provisions relating to advancement of expenses and indemnification rights consistent with those which will be set
forth in our third amended and restated certificate of incorporation, as amended. 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 our board of directors, 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.
The
registrant also intends to enter into indemnification agreements with its future directors and executive officers. The registrant has
purchased directors’ and officers’ liability insurance. The registrant believes that this insurance is necessary to attract
and retain qualified directors and officers.
See
also the undertakings set out in response to Item 9 herein.