Item 6.
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Indemnification of Directors and Officers.
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The following summarizes certain
arrangements by which controlling persons, directors and officers of the Company, a Delaware corporation, are indemnified against liability which they may incur in such capacities.
Delaware General Corporation Law
. Subsection (a) of Section 145 of the Delaware General Corporation Law
(DGCL) empowers a corporation to 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, 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, fines 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 believed 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.
Subsection (b) of Section 145 of the DGCL empowers a corporation to 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 corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that 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 upon application that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 of the DGCL
further provides that to the extent a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the
defense of any claim, issue or matter therein, he will be indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in connection with his defense. This indemnification or advancement of expenses is not
exclusive of any other rights to which the indemnified party may be entitled. Section 145 empowers the corporation to purchase and maintain insurance on behalf of a director, officer, employee or agent of the corporation against any liability
asserted against him or 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 liabilities under Section 145.
Section 102(b)(7) of the DGCL enables a corporation in its certificate of incorporation to eliminate or limit the personal liability of a
director for monetary damages for violations of a directors fiduciary duty, except for liability (i) for any breach of the directors duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (iii) under 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.
Certificate of Incorporation
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Paragraph 9 of our Certificate of Incorporation, provides that, any director, officer or trustee of the Company who was or is a party in any action, suit or proceeding by reason of the fact that he is or was a director or an officer of the Company,
shall be indemnified to the fullest extent permitted by the DGCL, against all expense, liability and loss reasonably incurred or suffered by such person in connection with any such action, suit or proceeding.
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Paragraph 9 of our Certificate of Incorporation also provides that we may pay expenses incurred
in defending a proceeding in advance of its final disposition, provided that the indemnitee shall deliver an undertaking to repay all amounts so advanced if it shall ultimately be determined by a court, on final disposition, that the indemnitee is
not entitled to be indemnified for such expenses. We may grant rights to indemnification and advancement of expenses to any employee or agent of the Company to the fullest extent permitted under the DGCL. The rights to indemnification and
advancement of expenses are not exclusive of any other rights which a director, officer or employee or agent may have under any agreement, vote of shareholders or disinterested director, or otherwise. We may purchase insurance against any such
expense, liability or loss. Finally, no repeal or modification of Article 9 will adversely affect the rights to indemnification of directors that exist prior to such repeal or modification.
Paragraph 8 of our Certificate of Incorporation provides that, to the fullest extent permitted by the DGCL, a director will not be liable to
the Company or its shareholders for monetary damages for breach of his fiduciary duty to the Company or its shareholders.
Bylaws
. Article VII of our Bylaws provides that the Company will indemnify any authorized representative (including officers,
directors and employees) who has been made party to a third-party proceeding, against any expenses or judgments incurred by such person, if such person acted in good faith and in a manner he reasonably believed to be in the best interests of the
Company and reasonably believed his conduct was lawful or if he was successful in his defense of such proceeding. We will also indemnify any authorized representative who has been made party to any corporate proceeding against any expenses actually
incurred by such person, if such person acted in good faith and in a manner he reasonably believed to be in the best interests of the Company or if he was successful in defense of such proceeding. However, we will not be obligated to indemnify the
authorized representative if he is found liable, unless the court determines that he is entitled to indemnification despite his liability. The authorized representative may have indemnification rights beyond those granted in our Bylaws. The
authorized representatives rights to indemnification arising under any statute, agreement, vote by shareholders or disinterested directors or otherwise will not be reduced or diminished by the indemnification provided under our Bylaws.
Insurance
. The Company maintains directors and officers liability insurance, which covers such persons against certain claims or
liabilities arising out of the performance of their duties.
(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 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 the registration statement or any material change to such information in the registration statement;
provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in periodic 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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 registrants annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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; and
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(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 Act and will be governed by the final adjudication of such issue.
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