Not applicable.
Item 6. Indemnification of Directors and Officers.
Our restated certificate of incorporation
includes a provision that eliminates the personal liability of directors for monetary damages for any breach of fiduciary duty as a director,
except where such liability is imposed under the New York Business Corporation Law (the “NYBCL”). The NYBCL provides that
a corporation may indemnify an individual made a party to a proceeding because he is or was a director against liability incurred in the
proceeding unless (i) the act or omission was material to the matter giving rise to the proceeding and was committed in bad faith or was
the result of active and deliberate dishonesty; (ii) the director actually received an improper personal benefit; or (iii) in the case
of any criminal proceeding, the director had reasonable cause to believe the act or omission was unlawful, provided however, that if the
proceeding was by or in the right of the corporation, no indemnification may be made if the director is adjudged liable to the corporation.
The Board of Directors of the Company (the “Board”) may also indemnify an employee or agent of the corporation who was or
is a party to any proceeding by reason of the fact that he is or was an employee or agent of the corporation.
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Our restated certificate of
incorporation, as amended and amended and restated by-laws provide that, to the maximum extent permitted by the New York law and the
federal securities laws, we must indemnify and, upon request advance, expenses to a director or officer made, or threatened to be
made, a party to any action or proceeding (other than a shareholder derivative action) by reason of such person being a director or
officer, if such director or officer acted in good faith for a purpose which he or she reasonably believed to be in, or not opposed
to, the best interests of the corporation and, in criminal actions or proceedings, in addition, had no reasonable cause to believe
that his or her conduct was unlawful. Indemnification would cover reasonable expenses, including attorneys’ fees, judgments,
fines, amounts paid in settlement.
The limitation of liability, indemnification
and advancement provisions in our restated certificate of incorporation and amended and restated by-laws may discourage stockholders from
bringing a lawsuit against directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood
of derivative litigation against directors and officers.
Insofar as indemnification for
liabilities arising under the Securities Act, may be permitted to directors, officers or persons controlling us pursuant to the foregoing
provisions, we have 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. 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.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a)(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 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 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 this registration statement or any
material change to such information in this 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 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 this
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.
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