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Item 6.
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Indemnification of Directors and Officers.
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We are incorporated under the laws of the State of Delaware.
Section 145 of the Delaware General Corporation Law (“DGCL”) provides that a Delaware corporation may indemnify any
persons who are, or are threatened to be made, parties 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 was an officer, director, employee, or agent of such corporation, or is or was serving at the request of
such person as an officer, director, 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 that such person acted in good faith and in a manner he or she 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 his or her conduct was illegal. Our bylaws includes such provisions related to our authority
to indemnify a director, officer, employee, fiduciary, or agent.
Section 145 of the DGCL also provides that a Delaware
corporation may indemnify any person who is, 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 by reason of the fact that such person was a director, officer,
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)
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 he or she reasonably believed to be in or not opposed to the
corporation’s best interests, except that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation.
Under the DGCL, 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 him or her against the
expenses which such officer or director has actually and reasonably incurred. Article V, Section 3 of our bylaws contains a mandatory
indemnification provision, which requires us to indemnify a person who was wholly successful, on the merits or otherwise, in the
defense of any proceeding to which the person was a party because the person is or was a director, against reasonable expenses
incurred by him or her in connection with the proceeding.
Section 102(b)(7) of the DGCL permits a corporation to provide
in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
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breach of a director’s duty of loyalty to the corporation or its stockholders;
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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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unlawful payment of dividends, stock purchase or redemption of shares; or
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transaction from which the director derives an improper personal benefit.
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Our amended certificate of incorporation does not include
such a provision.
Pursuant to Article V, Section 4 of our bylaws, expenses
incurred by any officer or director in defending any proceeding in advance of its final disposition shall be paid by us upon delivery
to us of an undertaking by or on behalf of such director or officer, to repay all amounts advanced if it should ultimately be
determined that such director or officer is not entitled to be indemnified by us.
Section 174 of the DGCL provides, among other things, that
a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption,
may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at
the time, may avoid liability by causing his or her dissent to such actions to be entered on the books containing minutes of the
meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of
the unlawful acts.
We have an insurance policy covering our officers and directors
with respect to certain liabilities, including liabilities arising under the Securities Act, or otherwise.
(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:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective date of this 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 this 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% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in
the effective Registration Statement;
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(iii)
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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;
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provided
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however
, that paragraphs (a)(1)(i)
and (a)(1)(ii) of this section do not apply if 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.
(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 related to the securities offered therein, and the offering of such securities at the
time shall be deemed to be the initial bona fide offering thereof.
(h) 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.
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