Item
6. Indemnification of Directors and Officers.
Section
302A.521, subd. 2, of the Minnesota Business Corporation Act (the “MBCA”) provides that a corporation shall indemnify
any person made or threatened to be made a party to a proceeding by reason of acts or omissions performed in his or her official
capacity as an officer, director, employee or agent of the corporation against judgments, penalties, fines, including without
limitation, excise taxes assessed against such person with respect to an employee benefit plan, settlements, and reasonable expenses,
including attorneys’ fees and disbursements, incurred by the person in connection with the proceeding, if, with respect
to the acts or omissions of the person complained of in the proceeding, the person:
(a)
has not been indemnified by another organization or employee benefit plan for the same expenses with respect to the same acts
or omissions;
(b)
acted in good faith;
(c)
received no improper personal benefit and Section 302A.255 of the MBCA (regarding conflicts of interest), if applicable, has been
satisfied;
(d)
in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and
(e)
in the case of acts or omissions by persons in their official capacity for the corporation, reasonably believed that the conduct
was in the best interests of the corporation, or in the case of acts or omissions by persons in their capacity for other organizations,
reasonably believed that the conduct was not opposed to the best interests of the corporation.
In
addition, Section 302A.521, subd. 3, of the MBCA requires payment or reimbursement by the corporation, upon written request, of
reasonable expenses (including attorneys’ fees) incurred by a person in advance of the final disposition of a proceeding,
(a) upon receipt by the corporation of a written affirmation by the person of a good faith belief that the requirements for indemnification
set forth above have been met as well as a written undertaking by the person to repay all amounts so paid or reimbursed by the
corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied, and (b) after a determination
that the facts then known to those making the determination would not preclude indemnification under this section.
As
permitted by Section 302A.251 of the MBCA, Article 6 of the Registrant’s Articles of Incorporation limit its directors’
personal liability for claims of breach of fiduciary duty to the full extent permitted by the MBCA, and Article 5 of the Registrant’s
Bylaws provides that the Registrant shall indemnify such persons for such expenses and liabilities, in such manner, under such
circumstances and to such extent permitted by the MBCA, as now enacted or hereafter amended.
In
addition to the indemnification provisions of the MBCA, and the Registrant’s Articles of Incorporation and Bylaws, the Registrant
has entered into employment agreements with certain of its directors, officers and employees, which agreements, among other things,
require the Registrant to pay reasonable expenses, including attorneys’ fees and disbursements pertaining to any threatened,
pending, or completed civil, criminal, administrative, arbitration, or investigative proceeding in which the employee is made
or threatened to be made a party. Such payment obligation is contingent, however, upon receipt by the Registrant of (i) a written
affirmation by the employee of a good faith belief that criteria for indemnification set forth in Section 302A.521, subd. 2, of
the MBCA have been satisfied and a written undertaking by the employee to repay all amounts so paid or reimbursed by the Registrant
if it is ultimately determined that the criteria for indemnification have not been satisfied, and (ii) a finding that the facts
then known to those making the determination would not preclude indemnification under the Registrant’s Articles of Incorporation
and Bylaws and Section 302A.521 of the MBCA, including but not limited to whether the alleged misconduct by the employee that
is the subject of the proceeding is within the course and scope of the employee’s employment. The employment agreements
also provide that the Registrant shall purchase and maintain directors’ and officers’ liability insurance, comprehensive
general liability insurance, and errors and omissions insurance to cover its employees, in accordance with its or their terms,
to the maximum extent of the coverage available for any officer of the Registrant. The Registrant believes that these agreements
are reasonable, prudent, and necessary to attract and retain qualified directors, officers, and employees.
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 of 1933, as amended (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 the 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;
(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:
(A)
paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the Registration Statement is on Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is contained in 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
the Registration Statement; and
(B)
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the Registration Statement is on Form S-1, Form
S-3, Form SF-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained
in 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 the Registration Statement, or, as to a Registration Statement on Form S-3, Form SF-3,
or Form F-3, is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the 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 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;
and
(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.