Item 3. Incorporation of Documents by Reference.
The following documents, which
have been filed by the Registrant with the Securities and Exchange Commission (the “SEC”), are incorporated in this Registration
Statement by reference:
| (b) | The Registrant’s Current Reports on Form 8-K filed with the SEC on January 9, 2023, January 17, 2023, January 18, 2023, January 24, 2023, February 2, 2023 (Item 1.01), February 21, 2023, March 16, 2023 and March 22, 2023;
and |
| | |
| (c) | The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A filed with the SEC on June 4, 2020 (File No. 001-39312), pursuant to Section 12(b) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description,
including the description of the Registrant’s Common Stock included as Exhibit 4.1 to the Registrant’s Annual Report on Form
10-K filed with the SEC on March 16, 2023. |
All reports and other documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports on
Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such information that are related
to such items) after the date of this Registration Statement, but prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of filing of such documents; provided, however, that documents or information
deemed to have been furnished and not filed in accordance with the rules of the SEC shall not be deemed incorporated by reference into
this Registration Statement.
Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General
Corporation Law of the State of Delaware (the “DGCL”) provides that a Delaware corporation may indemnify any person who was,
is or is threatened to be made, 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 such corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided
such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the corporation’s best
interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that their conduct was illegal. A
Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in
the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the corporation’s best interests; provided that no indemnification is permitted
without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify such
officer or director against the expenses which such officer or director has actually and reasonably incurred.
Section 145 further authorizes
a 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 or enterprise,
against any liability asserted against such person and incurred by such person in any such capacity, or arising out of their status as
such, whether or not the corporation would otherwise have the power to indemnify such person under Section 145.
Section 102(b)(7) of the DGCL
allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached
the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment
of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.
The Registrant’s Second
Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) limits the liability of, and indemnifies,
its directors and officers to the fullest extent permitted under the DGCL. The Certification of Incorporation further provides that an
indemnified person is entitled, subject to certain limitations, to advancement, direct payment, or reimbursement of reasonable expenses
(including attorneys’ fees and disbursements) in advance of the final disposition of the proceeding.
The Registrant has entered
into indemnification agreements with its directors and executive officers. These indemnification agreements, among other things, require
the Registrant to indemnify its directors and officers for certain expenses, including attorneys’ fees, judgments, fines, and settlements
incurred by a director or officer in any action or proceeding arising out of their services as one of its directors or officers or any
other company or enterprise to which the person provides services as its request. The form of Indemnification Agreement was filed as Exhibit
10.26 to the Registrant’s Current Report on Form 8-K filed on February 16, 2021.
The Registrant has also obtained
insurance policies under which, subject to the limitations of the policies, its directors and officers are insured against liability for
actions taken in their capacity as directors and officers. The Registrant also maintains a general liability insurance policy, which covers
certain liabilities of directors and officers.
The Registrant’s Amended
and Restated Bylaws (the “Bylaws”) include the provisions relating to advancement of expenses and indemnification rights consistent
with those set forth in its Certificate of Incorporation. In addition, the Registrant’s 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 it within a specified period
of time. The Registrant’s Bylaws also permit it to purchase and maintain insurance, at its expense, to protect it and/or any director,
officer, employee or agent of the Registrant or another entity, trust or other enterprise against any expense, liability or loss, whether
or not the Registrant would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Any repeal or amendment of
provisions of the Registrant’s Bylaws affecting indemnification rights, whether by the Registrant’s 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 it 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.