Item
6. |
Indemnification
of Directors and Officers |
Nevada
Law
Section
78.138 of the Nevada Revised Statute (“NRS”) provides that a director or officer will not be individually liable unless it
is proven that (i) the director’s or officer’s acts or omissions constituted a breach of his or her fiduciary duties, and
(ii) such breach involved intentional misconduct, fraud or a knowing violation of the law.
Section
78.7502 of NRS permits a company to indemnify its directors and officers against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with a threatened, pending or completed action, suit or proceeding if the officer or director
(i) is not liable pursuant to NRS 78.138 or (ii) acted in good faith and in a manner the officer or director reasonably believed to be
in or not opposed to the best interests of the corporation and, if a criminal action or proceeding, had no reasonable cause to believe
the conduct of the officer or director was unlawful.
Section
78.751 of NRS permits a Nevada company to indemnify its officers and directors against expenses incurred by them in defending a civil
or criminal action, suit or proceeding as they are incurred and in advance of final disposition thereof, upon receipt of an undertaking
by or on behalf of the officer or director to repay the amount if it is ultimately determined by a court of competent jurisdiction that
such officer or director is not entitled to be indemnified by the company. Section 78.751 of NRS further permits the company to grant
its directors and officers additional rights of indemnification under its Articles of Incorporation or bylaws or otherwise.
Section
78.752 of NRS provides that a Nevada company may purchase and maintain insurance or make other financial arrangements on behalf of any
person who is or was a director, officer, employee or agent of the company, or is or was serving at the request of the company as a director,
officer, employee or agent of another company, partnership, joint venture, trust or other enterprise, for any liability asserted against
him and liability and expenses incurred by him in his capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the company has the authority to indemnify him against such liability and expenses.
Charter
Provisions and Other Arrangements of the Registrant
Our
Articles of Incorporation provide that no director or officer of the Registrant will be personally liable to the Registrant or any of
its stockholders for damages for breach of fiduciary duty as a director or officer; provided, however, that the foregoing provision shall
not eliminate or limit the liability of a director or officer (i) for acts or omissions which involve intentional misconduct, fraud or
knowing violation of law, or (ii) the payment of dividends in violation of Section 78.300 of NRS. In addition, our bylaws implement the
indemnification and insurance provisions permitted by Chapter 78 of the NRS by providing that:
The
Registrant shall indemnify its directors to the fullest extent permitted by the NRS and may, if and to the extent authorized by the Board
of Directors, so indemnify its officers and any other person whom it has the power to indemnify against liability, reasonable expense
or other matter whatsoever.
The
Registrant may at the discretion of the Board of Directors purchase and maintain insurance on behalf of any person who holds or who has
held any position identified in the paragraph above against any and all liability incurred by such person in any such position or arising
out of his status as such.
Indemnification
Agreements
The
Registrant has entered into Indemnification Agreements with each of its directors and officers, and maintains directors’ and officers’
liability insurance under which its directors and officers are insured against loss (as defined in the policy) as a result of certain
claims brought against them in such capacities.
Pursuant
to and subject to the terms, conditions and limitations set forth in the Indemnification Agreement, the Registrant has agreed to indemnify
each Indemnitee, against any and all expenses incurred in connection with the Indemnitee’s service as the Registrant’s officer,
director and or agent, or is or was serving at the Registrant’s request as a director, officer, employee, agent or advisor of another
corporation, partnership, joint venture, trust, limited liability company, or other entity or enterprise but only if the Indemnitee acted
in good faith and in a manner he reasonably believed to be in or not opposed to our best interest, and in the case of a criminal proceeding,
had no reasonable cause to believe that his conduct was unlawful. In addition, the indemnification provided in the indemnification agreement
is applicable whether or not negligence or gross negligence of the Indemnitee is alleged or proven. Additionally, the Indemnification
Agreement establishes processes and procedures for indemnification claims, advancement of expenses and costs and contribution obligations.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or control persons, 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 by such 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
offered, the Registrant will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by us 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: |
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1. | To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) | To include any
prospectus required by section 10(a)(3) of the Securities Act of 1933; |
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(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% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and |
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(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. |
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein 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 (15 U.S.C. 78m or 78o(d)) that are
incorporated by reference in the registration statement. |
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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. |
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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.