Notwithstanding the foregoing, unless Ginkgo otherwise consents in writing, the federal district courts of
the United States will be the exclusive forum for the resolution of any action, claim or proceeding arising under the Securities Act.
Limitations on
Liability and Indemnification of Officers and Directors
The DGCL authorizes corporations to limit or eliminate the personal liability of directors and
stockholders of corporations for monetary damages for breaches of directors fiduciary duties, subject to certain exceptions. The Charter includes a provision that eliminates, to the fullest extent permitted by the DGCL (as currently in effect
or as it may in the future be amended), the personal liability of Ginkgos directors for damages for any breach of fiduciary duty as a director.
The
Bylaws provide that, to the fullest extent permitted by the DGCL (as currently in effect or as it may in the future be amended), Ginkgo must indemnify and hold harmless and advance expenses to any of its directors and officers who is involved in any
action, suit or proceeding by reason of the fact that he or she is or was a director or officer of Ginkgo or, while serving as a director or officer of Ginkgo, is or was serving at the request of Ginkgo as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity. Ginkgo also is expressly authorized to carry directors and officers liability insurance providing
indemnification for Ginkgos directors, officers, and certain employees for some liabilities. Ginkgo believes that these indemnification and advancement provisions and insurance are useful to attract and retain qualified directors and executive
officers.
The limitation of liability, advancement and indemnification provisions in the Charter and the Bylaws may discourage stockholders from bringing
lawsuits against Ginkgos directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against Ginkgos directors and officers, even though such an action, if
successful, might otherwise benefit Ginkgo and its stockholders. In addition, your investment in Ginkgo may be adversely affected to the extent that Ginkgo pays the costs of settlement and damage awards against directors and officer pursuant to
these indemnification provisions.
There is currently no pending material litigation or proceeding involving any of Ginkgos directors, officers, or
employees for which indemnification is sought.
Corporate Opportunities
The Charter provides for the renouncement by Ginkgo of any interest or expectancy of Ginkgo in, or being offered an opportunity to participate, in any matter,
transaction, or interest that is presented to, or acquired, created, or developed by, or which otherwise comes into the possession of, any director of Ginkgo who is not an employee of Ginkgo or any of its subsidiaries, unless such matter,
transaction, or interest is presented to, or acquired, created, or developed by, or otherwise comes into the possession of, that director first in that directors capacity as a director of Ginkgo.
Dissenters Rights of Appraisal and Payment
Under
the DGCL, with certain exceptions, Ginkgos stockholders will have appraisal rights in connection with a merger or consolidation of Ginkgo. Pursuant to the DGCL, stockholders who properly demand and perfect appraisal rights in connection with
such merger or consolidation will have the right to receive payment of the fair value of their shares as determined by the Delaware Court of Chancery.
Stockholders Derivative Actions
Under the DGCL,
any of Ginkgos stockholders may bring an action in Ginkgos name to procure a judgment in Ginkgos favor, also known as a derivative action, provided that the stockholder bringing the action is a holder of
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