Item 6. Indemnification of Directors and Officers.
Section 102 of the General Corporation Law of the State of Delaware permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for
a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock
repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our third amended and restated certificate of incorporation provides that, to the fullest extent permitted by the General Corporation Law of the State of
Delaware, no director of our corporation shall be liable to it or its stockholders for monetary damages for any breach of fiduciary duty as director.
Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving at
the request of the corporation in related capacities against expenses (including attorneys' fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to
which he is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to 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 other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Our third amended and restated certificate of incorporation provides that we will indemnify any person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative or investigative, any appeal in such an action, suit or proceeding and any inquiry or investigation that could lead to such an action, suit or proceeding (whether or not by or in the
right of our corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of our corporation, or is or was serving at our request as a director, officer, partner, venturer, proprietor, trustee, employee, agent or
in a similar capacity with another corporation, partnership, joint venture, sole proprietorship, trust, nonprofit entity, employee benefit plan or other enterprise, against all judgments, penalties (including excise and similar taxes), fines,
settlements and expenses (including attorneys' fees and court costs), actually and reasonably incurred by or on behalf of the indemnitee in connection with such action, suit or proceeding, to the fullest extent permitted by any applicable law. Under
certain circumstances, expenses must be advanced to directors and officers, and may be advanced to other indemnitees. Directors and officers are required to provide us with an undertaking to repay the advance if it is ultimately determined that such
person is not entitled to be indemnified by us.
Our fifth amended and restated bylaws further provide that any person entitled to indemnification will only be indemnified if such person acted in good faith and in a manner which the person reasonably believed to be in,
or not opposed to, our best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Our fifth amended and restated bylaws further provide that we will indemnify any person
who was or is a party to or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of our corporation to procure a judgment in our favor by reason of the fact that such person is or was a director,
officer, employee or agent of our corporation, or is or was serving at our request, 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 the defense or settlement of such action or suit, if the person acted in good faith and in a manner which the person reasonably believed to be in, or not opposed to, our best
interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to us, unless, and only to the extent, that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expense (including attorney’s fees) which the Court of Chancery of Delaware or such other court shall deem proper. To the extent that a present or former director or officer has been successful on the merits or otherwise in defense of any action,
suit or proceeding, or any claim, issue or matter therein, such person shall be indemnified by us against expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith.
Unless ordered by a court, we can only indemnify a person if it is authorized after a determination has been made that the person has met the proper standard of conduct set forth in our bylaws. These determinations shall
be made, with respect to a person who is a director or officer at the time of the determination (1) by a majority of the vote of directors who are not parties to the action, or a committee thereof, (2) under certain circumstances, by independent
legal counsel in a written opinion or (3) by our stockholders.
Additionally, we have entered into indemnification agreements with each of our current directors and officers. These indemnification agreements are intended to provide indemnification rights to the fullest extent
permitted by Delaware law. These agreements provide that we indemnify such persons against certain liabilities that may arise by reason of their status or service as a director or officer, to advance their expenses incurred as a result of a
proceeding as to which they may be indemnified and to cover such persons under any directors’ and officers’ liability insurance policy that we may choose to maintain.
On September 11, 2014, we entered into an Agreement and Plan of Merger, or the merger agreement, with Conversant, Inc. and Amber Sub LLC, which at the time was our direct wholly-owned subsidiary, pursuant to which
agreement, on December 10, 2014, Conversant, Inc. merged with and into Amber Sub LLC, with Amber Sub LLC continuing as the surviving company and at the time was our direct wholly-owned subsidiary (now known as Conversant LLC). Under the merger
agreement, for six years after the effective time of the merger, we are required to cause the surviving company in the merger, and the surviving company is required, to maintain the indemnification, advancement of expenses and exculpation rights
existing in favor of present and former directors, officers or employees of Conversant, Inc. and its subsidiaries as contained in Conversant, Inc.'s organizational documents (and Conversant, Inc.'s subsidiary organizational documents) in effect at
the time of the merger or indemnification agreements in effect on September 11, 2014.
The merger agreement also requires that the surviving company will, and we will cause the surviving company to, maintain in effect for six years from the effective time of the merger directors' and officers' liability
insurance on terms at least as favorable to these individuals as Conversant, Inc.'s directors' and officers' liability insurance policies then in effect with respect to events occurring at or prior to the effective time of the merger, provided that
the annual premium does not exceed 250% of the then-current annual premium paid by Conversant, Inc.
We maintain a general liability insurance policy which covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.