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 of the circumstances of
the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. The DGCL further provides that (i) to the extent a present or former
director or officer of a corporation has been successful in the defense of any action, suit or proceeding described above or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including
attorneys fees) actually and reasonably incurred by such person, in connection therewith; and (ii) indemnification and advancement of expenses provided for, by, or granted pursuant to, the DGCL shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled. The DGCL permits a Delaware corporation to purchase and maintain on behalf of any director or officer, insurance against liabilities incurred in such capacities. The DGCL also permits
a corporation to pay expenses incurred by a director or officer in advance of the final disposition of an action, suit or proceeding, upon receipt of an undertaking by the director or officer to repay such amount if it is determined that such person
is not entitled to indemnification. The DGCL further permits a corporation, in its original certificate of incorporation or an amendment thereto, to eliminate or limit the personal liability of a director to the corporation or its stockholders
for monetary damages for violations of the directors fiduciary duty except: (i) for any breach of the directors 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) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions) or (iv) for
any transaction from which a director derived an improper personal benefit.
The Companys Certificate of Incorporation and bylaws
provide that the Company shall indemnify its officers and directors to the extent permitted by Delaware law. The Companys Certificate of Incorporation also eliminates the personal liability of directors to the Company or its shareholders
for monetary damages for breach of fiduciary duty to the extent permitted by Delaware law.
In addition, the Company has entered into an
Indemnification Agreement with each of its officers and directors, which states that if the officer or director that is a party to the agreement was, is, or becomes a party to or witness or other participant in, or is threatened to be made a party
to, or witness or other participant in, any threatened, pending, or completed action, suit, or proceeding or any inquiry or investigation, whether conducted by the Company or any other party, by reason of (or arising in part out of) any event or
occurrence related to the fact that the officer or director is or was a director, officer, employee, agent, or fiduciary of the Company or is or was serving at the Companys request as a director, officer, employee, trustee, agent, or fiduciary
of another corporation, partnership, joint venture, employee benefit plan, trust, or other enterprise or by reason of anything done or not done by the officer or director that is a party to the agreement in any such capacity, the Company shall
indemnify such officer or director to the fullest extent permitted by law against any and all attorneys fees and all other costs, expenses, and obligations paid or incurred in connection with investigating, defending, being a witness in, or
participating in any claim described above, and judgments, fines, penalties, and amounts paid in settlement of any claim described above, provided that a member or members of the Companys board of directors has not concluded upon review of the
claim that the director or officer party to the agreement would not be permitted to be indemnified under applicable law. Prior to a change in control of the Company, as defined in the agreement, the director or officer who is a party to the
agreement will not be entitled to indemnification in connection with any claim described above by such officer or director against the Company or any other director or officer of the Company except under certain circumstances. In the event of a
change in control of the Company, as defined in the agreement, other than a change in control which has been approved by a majority of the Companys board of directors who were directors immediately prior to such change in control, then with
respect to all matters thereafter arising concerning the rights of the director or officer party to the agreement to indemnity payments, the Company is required to seek legal advice only from special, independent counsel selected by such officer or
director and approved by the Company.
The foregoing statements are subject to the detailed provisions of the DGCL and the Companys
certificate of incorporation and the Companys bylaws.
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