Certain matters with
respect to the shares of Common Stock being registered hereunder are being passed upon by Michael R. McCoy, Esq., whose opinion
is filed as Exhibit 5.1 to this Registration Statement. Mr. McCoy is our General Counsel and the beneficial owner of less than
1% of our outstanding Common Stock.
Item 6. Indemnification of Directors and
Officers.
Section 721 of the New York Business Corporation
Law (the “NYBCL”) provides that indemnification and advancement of expenses granted pursuant to the NYBCL are not exclusive
of any other rights to indemnification and advancement of expenses that a corporation may grant to a director or officer through its
certificate of incorporation or by-laws or, when authorized by such certificate of incorporation or by-laws, by a duly authorized resolution
of its shareowners or directors or by agreement, provided that no indemnification may be made to or on behalf of any director or officer
if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained
in fact a financial profit or other advantage to which he was not legally entitled.
Section 722(a) of the NYBCL provides
that a corporation may indemnify a director or officer made, or threatened to be made, a party to any action or proceeding (other than
one by or in the right of the corporation to procure a judgment in its favor), whether civil or criminal against judgments, fines, amounts
paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action
or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to
be in, or, in the case of service for any other enterprise, 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 conduct was unlawful.
Section 722(c) of the NYBCL provides
that a corporation may indemnify a director or officer, made or threatened to be made a party in a derivative action, against amounts
paid in settlement and reasonable expenses, including attorneys’ fees, actually and necessarily incurred by him in connection with
the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith,
for a purpose which he reasonably believed to be in, or, in the case of service for any other enterprise, not opposed to, the best interests
of the corporation, except that no indemnification will be available in respect of (1) a threatened or pending action which is settled
or otherwise disposed of, or (2) any claim, issue or matter as to which such director or officer shall have been adjudged liable
to the corporation, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court
of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the director or officer is
fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper.
Section 723 of the NYBCL specifies the manner
in which payment of indemnification under Section 722 of the NYBCL or indemnification permitted under Section 721 of the NYBCL
may be authorized by the corporation. It provides that indemnification by a corporation is mandatory in any case in which the director
or officer has been successful, whether on the merits or otherwise, in defending an action. In the event that the director or officer
has not been successful or the action is settled, indemnification must be authorized by the appropriate corporate action as set forth
in Section 723. Section 724 of the NYBCL provides that, upon application by a director or officer, indemnification may be awarded
by a court to the extent authorized under Section 722 and Section 723 of the NYBCL.
Subject to certain limitations, Section 726
of the NYBCL authorizes a corporation to purchase and maintain insurance to indemnify (1) the corporation for any obligation that
it incurs as a result of the indemnification of directors and officers under the provisions of Article 7 of the NYBCL, (2) directors
and officers in instances in which they may be indemnified by a corporation under the provisions of Article 7 of the NYBCL, and
(3) directors and officers in instances in which they may not otherwise be indemnified by a corporation under Article 7 of
the NYBCL, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the superintendent
of financial services, for a retention amount and for co-insurance.
Article VIII of our Restated Certificate
of Incorporation provides as follows:
No director of the Corporation shall
be personally liable to the Corporation or its shareholders for damages for any breach of duty as a director, provided that nothing contained
in this Article VIII shall eliminate or limit the liability of any director if a judgment or other final adjudication adverse to
him or her establishes that his or her acts or omissions were in bad faith or involved intentional misconduct or a knowing violation
of law or that he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled
or that his or her acts violated Section 719 of the NYBCL. No amendment, modification or repeal of this Article VIII shall
adversely affect any right or protection of a director that exists at the time of such amendment, modification or repeal.
Section 6.6 of our By-laws provides as follows:
The Corporation shall indemnify to
the full extent permitted by law any person made or threatened to be made a party to any action or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of any other enterprise which any director or officer of the
Corporation served in any capacity, by reason of the fact that such person or such person’s testator or intestate is or was a director
or officer of the Corporation or serves or served such other enterprise in any capacity at the request of the Corporation. Expenses incurred
by any such person in defending any such action or proceeding shall be paid or reimbursed by the Corporation in advance of the final
disposition of such action or proceeding promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses
if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation. The rights provided to any
person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving
or continuing to serve as a director or officer as provided above. No amendment of this by-law shall impair the rights of any person
arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term “corporation”
shall include any constituent or subsidiary corporation (including any constituent of a constituent or subsidiary of a subsidiary) absorbed
by the Corporation in a consolidation or merger; the term “other enterprise” shall include any corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise; service “at the request of the Corporation” shall include
service as a director, officer or employee of the Corporation which imposes duties on, or involves services by, such director, officer
or employee with respect to an employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect
to an employee benefit plan shall be deemed to be indemnifiable expenses; and action taken or omitted by a person with respect to an
employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan
shall be deemed to be action not opposed to the best interests of the Corporation.
As permitted under the NYBCL and our governing
documents, we have entered into indemnification agreements with each of our directors and officers. In addition to providing for indemnification
to directors and officers in specified circumstances, these agreements require us to advance certain expenses to a director or officer
in an action that may give rise to an indemnification right, provided that, among other things, we receive an undertaking from the director
or officer to repay such expenses if the director or officer is ultimately found not to be entitled to indemnification, as required by
Section 726 of the NYBCL.
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 (“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 Securities and Exchange Commission ( “SEC”) 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 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 herein, 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 herein, 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 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.