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Item 6.
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Indemnification of Directors and Officers.
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Section 102(b)(7) of
the Delaware General Corporation Law authorizes a corporation in its certificate of incorporation to eliminate or limit personal
liability of directors of the corporation for violations of the directors’ fiduciary duty of care. However, directors remain
liable for breaches of duties of loyalty, failing to act in good faith, engaging in intentional misconduct, knowingly violating
a law, paying a dividend or approving a stock repurchase which was illegal under Delaware General Corporation Law Section 174
or obtaining an improper personal benefit. In addition, equitable remedies for breach of fiduciary duty of care, such as injunction
or recession, are available.
The Registrant’s
Bylaws include the following provisions:
“The Corporation
shall 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 Corporation)
by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys’ fees), judgments, fine and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believes 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 his conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of
nolo contendere
or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to
the best interest of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.”
Section 145 of
the Delaware General Corporation Law empowers a corporation to indemnify any person who was or is 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,
by reason of the fact that he is or was a director, officer or agent of the corporation or another enterprise if serving at the
request of the corporation. Depending on the character of the proceeding, a corporation may indemnify against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such
action, suit or proceeding if the person indemnified acted in good faith and, in respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. In the case of an action by or in the right of the corporation, no
indemnification may be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine that despite the adjudication of liability such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Section 145 further provides that to the extent a director, officer, employee
or agent of a corporation has been successful in the defense of any action, suit or proceeding referred to above or in the defense
of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by him in connection therewith.
The Registrant’s
Bylaws permit it to purchase insurance on behalf of such person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the Registrant would have the power to indemnify him
against such liability under the foregoing provision of the Bylaws.
“The Corporation
shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article VI.”
The Registrant holds
an insurance policy covering its directors and officers under which the insurer agrees to pay, with some exclusions, for any claim
made against the Registrant’s directors and officers for a wrongful act that they may become legally obligated to pay or
for which the Registrant is required to indemnify its directors or officers.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted for the Registrant’s directors, officers and controlling
persons under the above provisions, or otherwise, the Commission has advised the Registrant that, in its opinion, 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 it 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.
(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 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 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 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 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.