Item
6. Indemnification of Directors and Officers.
The
Registrant is incorporated under the laws of the State of Delaware. Section 102(b)(7) of the Delaware General Corporation Law
(“DGCL”) grants the Registrant the right to eliminate or limit the personal liability of a director to the Registrant
or its stockholders for monetary damages for breach of the director’s fiduciary duty, except (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 the law; (iii) pursuant to Section 174 of the DGCL (providing for liability of directors
for unlawful payment of dividends or unlawful stock purchases or redemptions); or (iv) for any transaction from which the director
derived an improper personal benefit. In accordance with Section 102(b)(7) of the DGCL, the Registrant’s Certificate of
Incorporation, as amended, includes a provision eliminating, to the fullest extent permitted by the DGCL, the personal liability
of the Registrant’s directors to the Registrant or its stockholders for monetary damages for breach of fiduciary duties
as directors. The Certificate of Incorporation further provides that if the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability of a director of the Registrant shall be eliminated
or limited to the fullest extent permitted by the DGCL, as so amended.
Under
Section 145 of the DGCL, the Registrant may indemnify any person who was or is a party or is threatened to be made a 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 the Registrant) by reason of the fact that the person is or was a director, officer, employee
or agent of the Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe
the person’s conduct was unlawful. Further, the Registrant may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or in the right of the Registrant to procure a judgment
in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Registrant, or is or
was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the Registrant, provided that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant
unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court
shall deem proper. To the extent that a present or former director or officer of the Registrant has been successful on the merits
or otherwise in defense of any action, suit or proceeding discussed above, or in defense of any claim, issue or matter therein,
the Registrant is required to indemnify such person against expenses, including attorneys’ fees, actually and reasonably
incurred by such person in connection therewith.
In
accordance with Section 145(a) of the DGCL, the Registrant’s Bylaws, as amended, provide that each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or
was a director or an officer of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect
to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Registrant to the fullest extent authorized by the DGCL, as the
same exists or may be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Registrant
to provide broader indemnification rights than such law permitted the Registrant to provide prior to such amendment), against
all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except
as otherwise provided in the Bylaws with respect to proceedings by an indemnitee against the Registrant to enforce rights to indemnification,
the Registrant shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of Directors of the Registrant.
As
permitted by Delaware law, the Registrant’s Bylaws authorize the Registrant to advance expenses (including attorneys’
fees) incurred by a director or officer in defending any proceeding in advance of the financial disposition of the proceeding
upon receipt of an undertaking by or on behalf of the director or officer to repay all amounts so advanced if it is ultimately
determined by final judicial decision from which there is no further right to appeal that such director or officer is not entitled
to be indemnified by the Registrant.
The
DGCL provides that the rights to indemnification and to the advancement of expenses described above shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise. Further, the Registrant’s Bylaws provide that the rights to
indemnification and to the advancement of expenses conferred in the Bylaws shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Registrant’s Certificate of Incorporation or Bylaws, agreement,
vote of stockholders or disinterested directors or otherwise.
The
Registrant is authorized under Delaware law to purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Registrant, or is or was serving at the request of the Registrant in a similar capacity for
another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or her
in any such capacity, or arising out of his or her status as such, whether or not the Registrant would have the power to indemnify
him or her against such liability. In addition, the Registrant’s Bylaws provide that the Registrant may maintain insurance,
at its expense, to protect itself and any director, officer, employee or agent of the Registrant or another corporation, partnership,
joint venture, 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.
Under
the terms of the Registrant’s directors’ and officers’ liability and company reimbursement insurance policies,
directors and officers of the Registrant are insured against certain liabilities, including liabilities arising under the Securities
Act.
Fundamental
Global Investors, LLC (“FGI”), together with its affiliates, is the largest stockholder of the Registrant. D. Kyle
Cerminara, Chairman of the Board of Directors and Chief Executive Officer of the Registrant, is Chief Executive Officer, Co-Founder
and Partner of FGI, and Lewis M. Johnson, Co-Chairman of the Registrant’s Board of Directors, is President, Co-Founder and
Partner of FGI. The funds managed by FGI, including the funds that directly own shares of the Registrant’s Common Stock,
have agreed to indemnify FGI, the principals of FGI, including Messrs. Cerminara and Johnson, or any other person designated by
FGI for claims arising from Messrs. Cerminara’s and Johnson’s service on the Registrant’s Board of Directors,
provided that a fund’s indemnity obligations are secondary to any obligations the Registrant may have with respect to Messrs.
Cerminara’s and Johnson’s service on the Registrant’s Board of Directors.
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;
(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 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% 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 (a)(1)(i) and (a)(1)(ii) 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.
(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 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.