Item 6.
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Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation
Law (the “DGCL”), permits a corporation, under specified circumstances, to indemnify its directors, officers,
employees or agents against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually
and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties by reason of the fact
that they were or are directors, officers, employees or agents of the corporation, if such directors, officers, employees or agents
acted in good faith and in a manner they 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 their conduct was unlawful. In a derivative
action, i.e., one by or in the right of the corporation, indemnification may be made only for expenses actually and reasonably
incurred by directors, officers, employees or agents in connection with the defense or settlement of an action or suit, and only
with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged
liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine
upon application that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnity for
such expenses the Court shall deem proper.
Section 102(b)(7) of the DGCL provides that
a 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:
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(1)
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for any breach of the director’s duty of loyalty to the corporation or its stockholders,
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(2)
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
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(3)
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under Section 174 (relating to liability for unauthorized acquisitions or redemptions of, or dividends on, capital stock) of the DGCL, or
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(4)
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for any transaction from which the director derived an improper personal benefit.
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The registrant’s certificate of incorporation
provides that all persons who it is empowered to indemnify pursuant to the provisions of Section 145 of the DGCL (or any similar
provision or provisions of applicable law at the time in effect), shall be indemnified by the registrant to the full extent permitted
thereby. The foregoing right of indemnification shall not be deemed to be exclusive of any other rights to which those
seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise.
The registrant’s by-laws provide that
it shall indemnify to the fullest extent provided for or permitted by law each of its officers and/or directors involved in, or
made or threatened to be made a party to, any action, suit, claim or proceeding, arbitration, alternative dispute resolution mechanism,
investigation, administrative or legislative hearing or any other actual, threatened, pending or completed proceeding, whether
civil or criminal, or whether formal or informal, and including an action by or in the right of the registrant or any enterprise,
and including appeals therein by reason of the fact that such officer and/or director or such person’s testator
or intestate (an “Indemnitee”) (i) is or was a director or officer of the registrant or (ii) while serving as a director
or officer of the registrant, is or was serving, at the registrant’s request, as a director, officer, or in any other capacity,
of any other enterprise, against any and all judgments, fines, penalties, amounts paid in settlement, and expenses, including attorneys’
fees, actually and reasonably incurred as a result of or in connection with any proceeding, except as provided in Section 2(c)
of Article VII of the by-laws. Section 2(c) of Article VII of the by-laws provides that no indemnification shall be made if a judgment
or other final adjudication adverse to him or her establishes that such Indemnitee’s acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that such Indemnitee
personally gained in fact a financial profit or other advantage to which he or she was not legally entitled. In addition,
Section 2(c) provides that no indemnification shall be made with respect to any proceeding initiated by any Indemnitee against
the registrant, or a director or officer of the registrant, other than to enforce the terms of the indemnification provisions of
the by-laws unless such proceeding was authorized by the registrant’s Board of Directors. Further, no indemnification
shall be made with respect to any settlement or compromise of any proceeding unless and until the registrant has consented to such
settlement or compromise.
The registrant’s certificate of incorporation
also provides that no director shall be personally liable to the registrant or its stockholders for any monetary damages for breaches
of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the registrant
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.
The registrant’s (i) employment agreements
with Mr. John Haugh, its director, chief executive officer and president, and with Mr. F. Peter Cuneo, its executive chairman and
director and (ii) executive severance plan and participation agreements related thereto for Mr. David Jones, its executive vice
president and chief financial officer, and Mr. Jason Schaefer, its executive vice president and general counsel, respectively,
generally provide that the registrant shall indemnify each of them for the consequences of all acts and decisions made by such
person while performing services for the registrant; the registrant shall not indemnify each of them for any liability to third
parties arising from their allegedly not being permitted to be employed by the registrant, contractually or otherwise; and require
that the registrant cover them under its directors’ and officers’ liability insurance at the registrant’s expense.
The registrant has obtained an insurance
policy providing for indemnification of officers and directors and certain other persons against liabilities and expenses incurred
by any of them in certain stated proceedings and conditions.
The indemnification provisions in the registrant’s
certificate of incorporation and bylaws may be sufficiently broad to permit indemnification of its directors and officers for liabilities
arising under the Securities Act of 1933.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to the registrant’s directors, officers and controlling persons
pursuant to the foregoing provisions or otherwise, the registrant has 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.
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 of 1933;
(ii) To
reflect in the Registration Statement any facts or events arising after the effective date of the prospectus (or the most recent
post-effective amendments 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 and of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and prices 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 the Registration Statement
or any material change to such information in the Registration Statement.
provided, however, that paragraphs (1)(i) and (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 SEC by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, 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.
The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933 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 SEC such indemnification
is against public policy as expressed in the 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 such Act and will be governed by the final adjudication of such issue.