Item
6. Indemnification of Directors and Officers.
General
Corporation Law of the State of Delaware
Under
Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”), the Company is empowered to indemnify its
directors and officers in the circumstances therein provided. Certain portions of Section 145 are summarized below:
Section
145(a) of 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 such 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 such person in connection with such action, suit, or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation
and in criminal actions where such person had no reasonable cause to believe such person’s conduct was unlawful.
Section
145(b) of 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 or suit by or in the right of the corporation to procure a judgment in its favor by reason
of the fact that such 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 such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue, or matter
in which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware 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 which
the Delaware Court of Chancery or such other court shall deem proper.
Under
Section 145(c) of the DGCL, indemnification against expenses (including attorneys’ fees) actually and reasonably incurred by directors,
officers, employees, and agents is required in those cases where the person to be indemnified has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in Section 145(a) and (b), or in defense of any claim, issue, or matter therein.
Section
145(d) of the DGCL provides that any indemnification under Section 145(a) and (b) (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee,
or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 145(a) and
(b). Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by
a majority vote of the directors who were not parties to such action, suit, or proceeding, even though less than a quorum, or (2) by
a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such
directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
Section
145(e) of the DGCL provides that expenses (including attorneys’ fees) incurred by an officer or director in defending any civil,
criminal, administrative, or investigative action, suit, or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit, or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in Section 145.
Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid
upon such terms and conditions, if any, as the corporation deems appropriate.
Section
145(f) of the DGCL provides that the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall
not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in such person’s official capacity
and as to action in another capacity while holding such office.
Under
Section 145(g) of the DGCL, a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee, or agent of the corporation, or who, while serving in such capacity, is or was at the request of the corporation, a director,
officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against liability asserted
against or 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 provide indemnity under Section 145.
Amended
and Restated Certificate of Incorporation
Article
X of the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) provides
that the Company shall indemnify all persons to the extent and in the manner permitted by the provisions of the DGCL. Article X also
provides that a director of the Company shall not be liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted by the DGCL.
Abeona
Therapeutics Inc. 2015 Equity Incentive Plan, as amended
Section
1.3(d) of the Plan provides that no member of the Compensation Committee of the Board shall be liable for any act or omission made in
good faith with respect to the Plan or any award thereunder.
Indemnification
and Executive Agreements
The
Company has entered into indemnification agreements (the “Indemnification Agreements”) with each of its directors and executive
officers. The terms of the Indemnification Agreements, subject to certain exceptions, generally
provide that the Company will hold harmless and indemnify the indemnitee to the fullest extent permitted by the DGCL against any and
all judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred in connection with any claims, suits,
or proceedings arising in connection with his or her service as a director or executive officer of the Company. Additionally, the Indemnification
Agreements provide that the indemnitee is entitled to the advancement of expenses, subject to certain exceptions and repayment conditions,
incurred in connection with such claims, suits, or proceedings.
Directors’
and Officers’ Insurance Policies
The
Company maintains insurance policies that, subject to conditions, limitations, and exclusions, provide for indemnification of the Company’s
directors and officers and for reimbursement to the Company of amounts paid as indemnity to any of its directors or officers.
The
above discussion of the Certificate of Incorporation, the Plan, the Indemnification Agreements, and Section 145 of the DGCL is not intended
to be exhaustive and is respectively qualified in its entirety by such Certificate of Incorporation, Plan, Indemnification Agreements,
and applicable statutes.