Item 3. Incorporation of Documents by Reference
The following documents, which were filed by the Registrant with the SEC, are incorporated herein by reference:
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Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed on March 17, 2014 ;
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2014, filed on May 12, 2014;
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Current Reports on Form 8-K filed on January 6, 2014, March 6, 2014, April 11, 2014 and July 2, 2014; and
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the description of the Registrants Common Stock contained in the Registrants Registration Statement on Form 8-A filed on August 12, 2013 under Section 12(b) of the Securities Exchange Act of 1934,
as amended (the Exchange Act).
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All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such documents. The Registrant is not, however, incorporating by reference any documents or
portions thereof, whether specifically listed above or filed in the future, that are not deemed filed with the SEC or any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or certain exhibits furnished pursuant to
Item 9.01 of Form 8-K.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement, or in any other subsequently filed document which also is or is deemed to be incorporated by
reference in this Registration Statement, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 6. Indemnification of Directors and Officers
Section 7-108-402 of the Colorado Business Corporation Act provides, generally, that the articles of incorporation of a Colorado
corporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director; except that any such provision may not eliminate
or limit the liability of a director (i) for any breach of the directors duty of loyalty to the corporation or its shareholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) acts specified in Section 7-108-403 (concerning unlawful distributions), or (iv) any transaction from which a director directly or indirectly derived an improper personal benefit. The articles of incorporation may not
eliminate or limit the liability of a director for any act or omission occurring prior to the date on which the provision becomes effective. The Registrants articles of incorporation contain a provision eliminating liability as permitted by
the statute. The Registrants articles of incorporation further provide that its directors and officers will not be held personally liable for any injury to persons or property caused by a tort committed by any of it employees unless either
(i) the director or officer was personally involved in the situation leading to the litigation or (ii) the director or officer committed a criminal offense in connection with the litigation.
Section 7-109-103 of the Colorado Business Corporation Act provides that a Colorado corporation must indemnify a person (i) who is
or was a director of the corporation or an individual who, while serving as a director of the corporation, is or was serving at the corporations request as a director, officer, agent, associate, employee, fiduciary, manager, member, partner,
promoter, trustee of, or similar position with, another corporation or other entity or of any employee benefit plan (a Director) or officer of the corporation and (ii) who was wholly successful, on the merits or otherwise, in
defense of any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal (a Proceeding), in which the Director was a party, against reasonable
expenses incurred by him or her in connection with the Proceeding, unless such indemnity is limited by the corporations articles of incorporation. The Registrants articles of incorporation do not contain any such limitation.
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Section 7-109-102 of the Colorado Business Corporation Act provides, generally, that a
Colorado corporation may indemnify a person made a party to a Proceeding because the person is or was a Director, against any obligation incurred with respect to a Proceeding, to pay a judgment, settlement, penalty, fine (including an excise tax
assessed with respect to an employee benefit plan) or reasonable expenses incurred in the Proceeding if the Director conducted himself or herself in good faith and the Director reasonably believed, in the case of conduct in an official capacity with
the corporation, that the Directors conduct was in the corporations best interests and, in all other cases, the Directors conduct was at least not opposed to the corporations best interests and, with respect to any criminal
proceedings, the Director had no reasonable cause to believe that his or her conduct was unlawful. The Registrants articles of incorporation mandate such indemnification except with respect to actions by or in the right of the Registrant in
which a Director is adjudged liable to the Registrant. A corporation may not indemnify a Director in connection with any Proceeding charging the Director derived an improper personal benefit, whether or not involving actions in an official capacity,
in which Proceeding the Director was judged liable on the basis that he derived an improper personal benefit.
Section 7-109-105 of
the Colorado Business Corporation Act authorizes a court of competent jurisdiction to order indemnification if it determines that the Director is (i) entitled to mandatory indemnification under Section 7-109-103 (in which case the court
also shall order the Colorado corporation to pay the Directors reasonable expenses incurred to obtain court-ordered indemnification) or (ii) fairly and reasonably entitled to indemnification in view of all of the relevant circumstances,
whether or not the Director met the standard of conduct under Section 7-109-102 or was adjudged liable in an action by or in the right of the Registrant or on the basis that he derived an improper personal benefit (except that the
indemnification in these circumstances is limited to the reasonable expenses incurred in connection with the Proceeding and reasonable expenses incurred to obtain court-ordered indemnification).
Under Section 7-109-107 of the Colorado Business Corporation Act, unless otherwise provided in its articles of incorporation, a Colorado
corporation may indemnify and advance expenses to an officer, employee, fiduciary, or agent of the corporation to the same extent as a Director and may indemnify such a person who is not a Director to a greater extent, if not inconsistent with
public policy and if provided for by its bylaws, general or specific action of its board of directors or shareholders, or contract. The Registrants articles of incorporation provide for indemnification of its officers, employees, fiduciaries
and agents to the same extent as its directors.
Section 7-109-104 of the Colorado Business Corporation Act authorizes a Colorado
corporation to pay expenses incurred in defending a Proceeding in advance of the final disposition of the Proceeding if the Director, officer, employee, fiduciary or agent undertakes in writing to repay the amount if it is a ultimately determined
that such person did not meet the statutory standards of conduct and a determination is made that the facts then known to those making the determination would not preclude indemnification under the Colorado Business Corporation Act.
Section 7-109-106 of the Colorado Business Corporation Act provides that the determination that a Director or other person is entitled to
indemnification or advancement of expenses under the Act is to be made by (i) the board of directors by a majority vote of those present at a meeting at which a quorum is present (and only those directors not parties to the Proceeding shall be
counted in satisfying the quorum), (ii) if a quorum cannot be obtained, by a majority vote of a committee of the board, which shall consist of two or more directors not parties to the Proceeding (except that directors who are parties to the
Proceeding may participate in the designation of the directors for the committee) or (iii) by the corporations shareholders. With respect to clauses (i) and (ii), if a quorum of the board cannot be obtained and a committee cannot be
established (or even if quorum is obtained or a committee is designated), if a majority of the directors constituting such quorum or such committee so directs, the determination required to be made under the Act must be made by independent legal
counsel selected by a vote of the board or committee constituted in the manner contemplated in the preceding sentence or if a quorum cannot be obtained and a committee cannot be established, by independent legal counsel selected by a majority vote
of the full board of directors. Authorization of indemnification and advancement of expenses must be made in the same manner as the determination that indemnification or advancement of expenses is permissible; except that, if the determination that
indemnification or advancement of expenses is permissible is made by independent legal counsel, authorization of indemnification and advancement of expenses is to be made by the body that selected such counsel.
The Registrant has obtained policies of directors and officers liability insurance. This policy insures the Registrants
directors and officers against the cost of defense, settlement or payment of a judgment under certain circumstances.
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Item 9. Undertakings
1. The undersigned Registrant
hereby undertakes:
(a) 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 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 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; 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
(1)(a)(i) and (1)(a)(ii) 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 SEC by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;
(b) 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; and
(c) 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.
2. The undersigned Registrant hereby further undertakes
that, for the purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this 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.
3. 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.
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