Not applicable.
Item 6. |
Indemnification of Directors and Officers. |
The following summarizes certain arrangements by which controlling
persons, directors and officers of the Company, a Florida corporation, are indemnified against liability which they may incur in such
capacities.
Florida Business Corporation Act (the “FBCA”):
Under Section 607.0831 of the FBCA, a director is not personally liable for monetary damages to the corporation or any other person for
any statement, vote, decision to take or not to take action, or any failure to take any action, as a director, unless (1) the director
breached or failed to perform his or her duties as a director and (2) the director’s breach of, or failure to perform, those duties
constitutes any of the following: (a) a violation of the criminal law, unless the director had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (b) a circumstance under which the transaction
at issue is one from which the director derived an improper personal benefit, either directly or indirectly; (c) a circumstance under
which the liability provisions of Section 607.0834 of the FBCA are applicable; (d) in a proceeding by or in the right of the corporation
to procure a judgment in its favor or by or in the right of a shareholder, conscious disregard for the best interest of the corporation,
or willful or intentional misconduct; or (e) in a proceeding by or in the right of someone other than the corporation or a shareholder,
recklessness or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property. A judgment or other final adjudication against a director in any criminal proceeding for
a violation of the criminal law estops that director from contesting the fact that his or her breach, or failure to perform, constitutes
a violation of the criminal law; but does not estop the director from establishing that he or she had reasonable cause to believe that
his or her conduct was lawful or had no reasonable cause to believe that his or her conduct was unlawful.
Section 607.0851 of the FBCA provides that
a Florida corporation shall have the power to indemnify any person who was or is a party to any proceeding (other than an action by, or
in the right of, the corporation), by reason of the fact that he or she is or was a director, officer, agent or employee 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 liability incurred in connection with such proceeding, including any appeal thereof,
if he or she acted in good faith and in a manner 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.
The termination of any proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person 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, with respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
The FBCA also provides, under Section 607.0852,
that a corporation must indemnify an individual who is or was a director or officer who was wholly successful, on the merits or otherwise,
in the defense of any proceeding to which the individual was a party because he or she is or was a director or officer of the corporation
against expenses incurred by the individual in connection with the proceeding. Further, under Section 607.0853 of the FCBA, a corporation
may, before final disposition of a proceeding, advance funds to pay for or reimburse expenses incurred in connection with the proceeding
if the director or officer delivers to the corporation a signed written undertaking of the director or officer to repay any funds advanced
if: (a) the director or officer is not entitled to mandatory indemnification under Section 607.0852; and (b) it is ultimately determined
that the director or officer has not met the relevant standard of conduct described in Section 607.0851 or the director or officer is
not entitled to indemnification under Section 607.0859 (as described below).
Under Section
607.0858 of the FBCA, the indemnification provided pursuant to Sections 607.0851 and 607.0852 and the advancement of expenses provided
pursuant to Section 607.0853 of the FBCA are not exclusive, and a corporation may by a provision in its articles of incorporation, bylaws,
or any agreement, by vote of shareholders or disinterested directors, or otherwise, obligate itself in advance of the act or omission
giving rise to a proceeding to provide any other or further indemnification or advancement of expenses to any of its directors or officers.
However, under Section 607.0859, indemnification or advancement of expenses may not be made to or on behalf of any director or officer
if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action
so adjudicated and constitute: (a) willful or intentional misconduct or a conscious disregard for the best interests of the corporation
in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a shareholder;
(b) a transaction in which the director or officer derived an improper personal benefit; (c) a violation of the criminal law, unless the
director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct
was unlawful; or (d) in the case of a director, a circumstance under which the liability provisions of Section 607.0834 are applicable.
By-laws. The Company’s by-laws
provide that, except as prohibited under Florida law, it shall indemnify any person who was or is made a party to any proceeding by reason
of the fact that he or she was or is a director, an officer, or the general counsel of the corporation, or a director, an officer, or
the general counsel of the corporation serving as a trustee or fiduciary of an employee benefit plan of the corporation, against liability
incurred in connection with such proceeding, including any appeal thereof.
Insurance. The Company maintains insurance
policies insuring its directors and officers against certain liabilities they may incur in their capacity as directors and officers.
Indemnification Agreements. The Company
has entered into indemnification agreements with each of its directors and officers. These agreements establish processes and procedures
for indemnification claims.
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 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 this 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)(i) and (1)(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 Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this 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.
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 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.
The undersigned Registrant further undertakes that,
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.