Item 6. Indemnification of Directors and Officers.
The following summary is qualified in its
entirety by reference to the complete text of any statutes referred to below and the certificate of incorporation of Energous Corporation,
a Delaware corporation.
Section 145 of the General Corporation Law
of the State of Delaware (the “DGCL”) permits a Delaware corporation to 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 such action, suit or proceeding if the person acted in good faith and in a manner the person 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 person’s conduct was unlawful.
In the case of an action by or in the right
of the corporation, Section 145 of the DGCL permits a Delaware corporation to 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 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) actually and reasonably incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery
or such other court shall deem proper.
Section 145 of the DGCL also permits a Delaware
corporation to purchase and maintain insurance on behalf of any person who 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 any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power
to indemnify such person against such liability under Section 145 of the DGCL.
Article IX of the Company’s Second
Amended and Restated Certificate of Incorporation states that the Company’s directors shall not be personally liable to the
Company or to its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director’s duty of loyalty to the Company or to its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction
from which the director derived an improper personal benefit. If the DGCL is amended after the date hereof to authorize corporate
action further eliminating or limiting the personal liability of directors, then the liability of the Company’s directors
shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Article X of the Company’s Second
Amended and Restated Certificate of Incorporation authorizes the Company, to the fullest extent permitted by applicable law, to
provide indemnification of (and advancement of expenses to) the Company’s directors, officers, employees and agents (and
any other persons to which the DGCL permits us to provide indemnification) through bylaw provisions, agreements with such directors,
officers, employees, agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification
and advancement otherwise permitted by Section 145 of the DGCL, subject only to limits created by the DGCL, with respect to actions
for breach of duty to this corporation, its stockholders, and others.
Article VI of the Company’s Amended
and Restated Bylaws provides that the Company shall, to the maximum extent and in the manner permitted by the DGCL, indemnify each
of the Company’s directors and officers against expenses (including attorneys’ fees), judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person
is or was an agent of the Company. The right to indemnification conferred by Article VI is a contract right and includes the right
to be paid by the Company the expenses incurred in defending any action or proceeding for which indemnification is required or
permitted following authorization thereof by the Board of Directors shall be paid in advance of the final disposition of such action
or proceeding upon receipt of an undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately
be determined by final judicial decision from which there is no further right to appeal that the indemnified party is not entitled
to be indemnified as authorized in Article VI. The Company maintains insurance, at its expense, to protect the Company and any
of our directors, officers, employees or agents against any such expense, liability or loss, whether or not we have the power to
indemnify such person.
As permitted by the DGCL, the Company has
entered into indemnification agreements with each of its directors and executive officers that require the Company to indemnify
such persons against various actions including, but not limited to, third-party actions where such director or executive officer,
by reason of his or her corporate status, is a party or is threatened to be made a party to an action, or by reason of anything
done or not done by such director in any such capacity. The Company intends to indemnify directors and executive officers against
all costs, judgments, penalties, fines, liabilities, amounts paid in settlement by or on behalf of such directors or executive
officers and for any expenses actually and reasonably incurred by such directors or executive officers in connection with such
action, if such directors or executive officers acted in good faith and in a manner they reasonably believed to be in or not opposed
to the best interests of the Company, and with respect to any criminal proceeding, had no reasonable cause to believe their conduct
was unlawful. The Company also intends to advance to its directors and executive officers expenses (including attorney’s
fees) incurred by such directors and executive officers in advance of the final disposition of any action after the receipt by
the Company of a statement or statements from directors or executive officers requesting such payment or payments from time to
time, provided that such statement or statements are accompanied by an undertaking, by or on behalf of such directors or executive
officers, to repay such amount if it shall ultimately be determined that they are not entitled to be indemnified against such expenses
by the Company.
The indemnification agreements also set
forth certain procedures that will apply in the event of a claim for indemnification or advancement of expenses, including, among
others, provisions about providing notice to the Company of any action in connection with which a director or executive officer
seeks indemnification or advancement of expenses from the Company and provisions concerning the determination of entitlement to
indemnification or advancement of expenses.
Item 9. Undertakings.
A. 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.
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;
(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 (A)(1)(i) and
(A)(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 Section 15(d) of
the Securities Exchange Act of 1934 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.
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 Securities Exchange Act of 1934 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.
C. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the
indemnification provisions summarized in Item 6 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.