Indemnification pursuant to this section may not be made for any claim, issue or matter as to which such a
person has been adjudged by a court of competent jurisdiction, after exhaustion of any appeals taken therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in
which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court
deems proper.
3. Any discretionary indemnification pursuant to this section, unless ordered by a court or advanced pursuant to subsection 2 of NRS
78.751, may be made by the corporation only as authorized in each specific case upon a determination that the indemnification of a director, officer, employee or agent of a corporation is proper under the circumstances. The determination must be
made by:
(a) The stockholders;
(b) The board of
directors, by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding; or
(c) Independent legal counsel,
in a written opinion, if:
(1) A majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders; or
(2) A quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained.
The registrants By-laws also provide that to the fullest extent permitted by NRS 78.751 (as from time to time
amended), the registrant shall pay the expenses of officers and directors of the Corporation incurred in defending a civil or criminal action, suit or proceeding, as they are incurred and in advance of the final disposition of such matter, upon
receipt of an undertaking in form and substance acceptable to the board of directors for the repayment of such advances if it is ultimately determined by a court of competent jurisdiction that the officer or director is not entitled to be
indemnified.
Section 78.751 of the Nevada Revised Statutes states:
1. A corporation shall indemnify any person who is a director, officer, employee or agent to the extent that the person is successful on the merits or
otherwise in defense of:
(a) Any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative,
including, without limitation, 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 request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or
(b) Any claim, issue or matter
therein, against expenses actually and reasonably incurred by the person in connection with defending the action, including, without limitation, attorneys fees.
2. Unless otherwise restricted by the articles of incorporation, the bylaws or an agreement made by the corporation, the corporation may pay the expenses of
officers and directors incurred in defending a civil or criminal action, suit or proceeding as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that the director or officer is not entitled to be indemnified by the corporation. The articles of incorporation, the bylaws or an agreement
made by the corporation may require the corporation to pay such expenses upon receipt of such an undertaking. The provisions of this subsection do not affect any rights to advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
3. The indemnification pursuant to this section and NRS 78.7502 and the advancement of
expenses authorized in or ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under the articles of incorporation or any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, for either an action in the persons official capacity or an action in another
capacity while holding office, except that indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the advancement of expenses made pursuant to subsection 2, may not be made to or on behalf of any director or officer finally
adjudged by a court of competent jurisdiction, after exhaustion of any appeals taken therefrom, to be liable for intentional misconduct, fraud or a knowing violation of law, and such misconduct, fraud or violation was material to the cause of
action.
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