Item
6. Indemnification of Directors and Officers.
Subsection
(a) of Section 145 of the Delaware General Corporate Law (“DGCL”) empowers a corporation to indemnify any person who was
or is a party or who 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.
Subsection
(b) of Section 145 empowers a corporation 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 acted in any of the capacities set forth above, 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, 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.
Section
145 of the DGCL further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise
in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, 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; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights
to which the indemnified party may be entitled; and the indemnification provided for by Section 145 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 such person’s heirs, executors and administrators. Section 145 also empowers the corporation 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 his
status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.
Section
102(b)(7) of the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper
personal benefit.
Registrant’s
Fourth Amended and Restated Certificate of Incorporation filed with the Secretary of State of Delaware on February 3, 2023 (the “Amended
Charter”) provides that its officers and directors will be indemnified by Registrant to the fullest extent authorized by Delaware
law, as it now exists or may in the future be amended. In addition, the Amended Charter provides that Registrant’s directors will
not be personally liable for monetary damages to Registration or its stockholders for breaches of their fiduciary duty as directors,
unless they violated their duty of loyalty to Registrant or its stockholders, acted in bad faith, knowingly or intentionally violated
the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived an improper personal
benefit from their actions as directors. The Registrant’s Amended and Restated Bylaws adopted on February 3, 2023 (the “Amended
Bylaws”) provide that, the Registrant shall have the rights and obligations related to indemnification as set forth in the Amended
Charter.
Registrant
has entered into, or may enter into, agreements with its officers and directors to provide contractual indemnification in addition to
the indemnification provided for in its Amended Charter. Registrant’s Amended Charter also permits Registrant to secure insurance
on behalf of any officer, director or employee for any liability arising out of his or her actions, regardless of whether Delaware law
would permit such indemnification.
Registrant
purchased a policy of directors’ and officers’ liability insurance that insures its officers and directors against the cost
of defense, settlement or payment of a judgment in some circumstances and insures Registrant against its obligations to indemnify its
officers and directors.
Registrant’s
indemnification obligations may discourage stockholders from bringing a lawsuit against its officers or directors for breach of their
fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against its officers and
directors, even though such an action, if successful, might otherwise benefit Registrant and its stockholders. Furthermore, a stockholder’s
investment may be adversely affected to the extent Registrant pays the costs of settlement and damage awards against its officers and
directors pursuant to these indemnification provisions.
Registrant
believes that these provisions, the insurance and the indemnity agreements are necessary to attract and retain talented and experienced
officers and directors.
Insofar
as indemnification by Registrant for liabilities arising under the Exchange Act may be permitted to its directors, officers and controlling
persons pursuant to provisions of the Amended Charter and its Amended Bylaws, or otherwise, Registrant has been advised that in the opinion
of the SEC, such indemnification is against public policy and is, therefore, unenforceable. In the event that a claim for indemnification
by such director, officer or controlling person of 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 offered, 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 Registrant is against public policy as expressed in the Exchange Act and will be governed by the final adjudication
of such issue.
At
the present time, there is no pending litigation or proceeding involving a director, officer, employee or other agent of Registrant in
which indemnification would be required or permitted. Registrant is not aware of any threatened litigation or proceeding which may result
in a claim for such indemnification.
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. |
