ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Nevada Law
We are incorporated in Nevada. Section 78.7502(1) of the Nevada
Revised Statutes, or NRS, provides that a corporation may
indemnify, pursuant to that statutory provision, 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 him or her in connection with such action,
suit or proceeding if he or she is not liable pursuant to NRS
78.138 or if he or she 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 his or her
conduct was unlawful. 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 the 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 the presumption established by NRS 78.138(3) has
been rebutted and it is proven that (i) his or her act or failure
to act constituted a breach of his or her fiduciary duties as a
director or officer, and (ii) such breach involved intentional
misconduct, fraud or a knowing violation of the law.
NRS 78.7502(2) permits a corporation to indemnify, pursuant to that
statutory provision, 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 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 him or her in connection
with the defense or settlement of such action or suit if he or she
is not liable pursuant to NRS 78.138 or if he or she 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, except
that no indemnification pursuant to NRS 78.7502 may be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged by a court of competent jurisdiction, after any
appeals taken 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 such action or suit was brought
or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper. NRS 78.751(1) provides that a
corporation shall indemnify any person who is a director, officer,
employee or agent of the corporation, against expenses actually and
reasonably incurred by the person in connection with defending an
action (including, without limitation, attorney’s fees), to
the extent that the person is successful on the merits or otherwise
in defense of any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, including, without limitation, 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, or any
claim, issue or matter in such action.
NRS 78.751(3) provides that the indemnification pursuant to NRS
78.7502 does not exclude any other rights to which a person seeking
indemnification may be entitled, except that indemnification may
not be made to or on behalf of any director or officer finally
adjudged by a court of competent jurisdiction, after exhaustion of
any appeals taken therefrom, to be liable for intentional
misconduct, fraud or a knowing violation of the law and such
intentional misconduct, fraud or a knowing violation of the law was
material to the cause of action and that the indemnification shall
continue as to directors, officers, employees or agents who have
ceased to hold such positions, and to their heirs, executors and
administrators. NRS 78.752 permits a 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 her or incurred by him or her in any such capacity or arising
out of his or her status as such whether or not the corporation
would have the power to indemnify him or her against such
liabilities.
Bylaws
Our bylaws include express provisions providing for the
indemnification of our directors and officers to the fullest extent
permitted under the NRS, and the mandatory payment by us of
expenses incurred by such persons in defending a civil or criminal
action, suit or proceeding 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 that such person is not entitled to be
indemnified by us. Our bylaws provide that the corporation also may
purchase and maintain insurance or make other financial
arrangements on behalf of any director, officer, agent or employee
of the corporation, for any liability asserted against him and for
expenses incurred by him in his capacity as a director, officer,
employee or agent, arising out of his status as such, whether or
not the corporation has the authority to indemnify him against such
liability and expenses.
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.