Item 20.
Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware, or the DGCL 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 corporation’s request 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 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. The power to
indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of expenses, including attorneys’ fees, actually and reasonably incurred by the person in connection with the defense or settlement of
the action or suit 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 a court of competent jurisdiction shall determine that such indemnity is proper.
Section 145(g) of the DGCL provides that a corporation shall have the power to purchase and maintain insurance on behalf of its officers, directors,
employees and agents, against any liability asserted against and incurred by such persons in any such capacity.
Section 102(b)(7) of the DGCL
provides that a corporation may eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or 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. No such provision shall eliminate or limit the liability of a director for any act or omission
occurring prior to the date when such provision becomes effective.
The Galena Certificate of Incorporation provides that Galena’s directors shall
not be liable to Galena or Galena stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that the exculpation from liabilities is not permitted under the DGCL as in effect at the time such liability is
determined. In addition, the Galena Certificate of Incorporation provides that Galena shall, to the maximum extent permitted by the DGCL, indemnify each 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, by reason of the fact that he is or was, or has agreed to become, Galena’s director or officer, or is or was serving, or has agreed to serve, at
Galena’s request, as a director, officer, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, including any employee benefit plan (all such persons being referred to
hereafter as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, Galena’s best interests, and,
with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, and that Galena shall not indemnify an Indemnitee seeking indemnification in connection with any action, suit, proceeding, claim or
counterclaim, or part thereof, initiated by the Indemnitee unless the initiation thereof was approved by the Galena Board.
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The Galena Certificate of Incorporation also provides that any indemnification under the preceding paragraph
(unless ordered by a court) shall be made by Galena only as authorized in the specific case upon a determination that indemnification is proper in the circumstances because such person has either met the applicable standard of conduct set forth in
this paragraph and that the amount requested has been actually and reasonably incurred. Such determination shall be made:
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1.
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by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; or
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2.
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by a committee of such directors designated by a majority vote of such directors, even though less than a quorum; or
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3.
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if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion; or
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4.
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by the holders of Galena Common Stock.
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The Galena Certificate of Incorporation provides that Galena may
purchase and maintain insurance policies on behalf of Galena’s directors and officers against specified liabilities for actions taken in its capacities as such, including liabilities under the Securities Act. Galena has obtained directors’
and officers’ liability insurance to cover liabilities Galena’s directors and officers may incur in connection with their services to Galena.
Item 22.
Undertakings
(a) The
undersigned registrant hereby undertakes as follows:
(1) That prior to any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by
the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form.
(2) That every prospectus (i) that is filed pursuant to paragraph (a)(1) immediately preceding, or (ii) that purports to meet the requirements
of Section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is
effective, and that, for purposes 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 respond to requests for information that is
incorporated by reference into this proxy statement/prospectus/consent solicitation statement pursuant to Item 4 10(b), 11, or 13 of
Form S-4,
within one business day of receipt of such request, and
to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the
request.
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(4) To supply by means of a post-effective amendment all information concerning a transaction, and the company
being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
(b) 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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