Item
6. Indemnification of Directors and Officers
Nevada
Revised Statutes, or NRS 78.138(7) provides that, subject to limited statutory exceptions and unless the articles of incorporation or
an amendment thereto (in each case filed on or after October 1, 2003) provide for greater individual liability, a director or officer
is not individually liable to a corporation or its stockholders or creditors for any damages as a result of any act or failure to act
in his or her capacity as a director or officer unless it is proven that: (i) the act or failure to act constituted a breach of his or
her fiduciary duties as a director or officer and (ii) the breach of those duties involved intentional misconduct, fraud or a knowing
violation of law.
NRS
78.7502(1) provides that a corporation may 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 the person 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, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person (i) is not liable pursuant
to NRS 78.138 or (ii) acted in good faith and in a manner which he or she 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 the conduct was unlawful.
NRS 78.7502(2) provides that a corporation may 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 favour by reason of
the fact that the person 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 amounts paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection
with the defense or settlement of the action or suit if the person (a) is not liable pursuant to NRS 78.138 or (ii) acted in good faith
and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation. To the extent that
a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any such action,
suit or proceeding, or in defense of any claim, issue or matter therein, the corporation shall indemnify him or her against expenses,
including attorneys’ fees, actually and reasonably incurred by him or her in connection with the defense. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, does not,
of itself, create a presumption that the person is liable pursuant to NRS 78.138 or did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the corporation, or that, with respect to any criminal action
or proceeding, he or she had reasonable cause to believe that the conduct was unlawful. Indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in
which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
NRS
78.751(1) provides that any discretionary indemnification pursuant to NRS 78.7502 (unless ordered by a court or advanced pursuant to
NRS 78.751(2)), may be made by the corporation only as authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances. The determination must be made (i) by the stockholders; (ii) by
the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding; (iii)
if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent
legal counsel in a written opinion; or (iv) if a quorum consisting of directors who were not parties to the action, suit or proceeding
cannot be obtained, by independent legal counsel in a written opinion. NRS 78.751(2) provides that the corporation’s articles of
incorporation or bylaws, or an agreement made by the corporation, may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the
amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified
by the corporation.
Under
the NRS, the indemnification pursuant to NRS 78.7502 and advancement of expenses authorized in or ordered by a court pursuant to NRS
78.751:
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● |
Does
not exclude any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the articles
of incorporation or any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, for either an action in the
person’s official capacity or an action in another capacity while holding office, except that indemnification, unless ordered
by a court pursuant to NRS 78.7502 or for the advancement of expenses made pursuant to NRS 78.751(2), may not be made to or on behalf
of any director or officer if a final adjudication establishes that the director’s or officer’s acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law and was material to the cause of action; and |
| |
|
|
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● |
Continues
for a person who has ceased to be a director, officer, employee or agent and inures to the benefit of the heirs, executors and administrators
of such a person. |
A
right to indemnification or to advancement of expenses arising under a provision of the articles of incorporation or any bylaw is not
eliminated or impaired by an amendment to such provision after the occurrence of the act or omission that is the subject of the civil,
criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought,
unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action
or omission has occurred.
Our
governing documents provide that to the fullest extent permitted under the NRS (including, without limitation, to the fullest extent
permitted under NRS 78.7502 and 78.751(3)) and other applicable law, that we shall indemnify our directors and officers in their respective
capacities as such and in any and all other capacities in which any of them serves at our request.
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 of 1933;
(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)(i) and (a)(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 Securities Exchange Act of 1934 that are incorporated by reference herein.
(b)
That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(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.
(d)
That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by
the undersigned Registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
2.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) 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.
3.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and
will be governed by the final adjudication of such issue.
