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.
To the extent that a director,
officer, employee or agent of a Nevada corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (1) and (2) of Section 78.7502, as described above, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him or her against expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the defense.
The Registrants Amended and Restated Articles of Incorporation provide that no director or officer of the Registrant shall be personally
liable to the Registrant or its shareholders for damages for breach of fiduciary duty as a director or officer, except for liability (i) for acts or omissions that involve intentional misconduct, fraud or a knowing violation of law, or
(ii) for the payment of dividends in violation of the Section 300 of Chapter 78 of the Nevada Revised Statutes. The Amended and Restated Articles of Incorporation further provide that the liability of directors and officers of the
Registrant shall be eliminated or limited to the fullest extent authorized by Nevada law, as amended. Section 78.138(7) of the Nevada Revised Statutes, as amended, provides that, subject to limited statutory exceptions and unless the articles
of incorporation or an amendment thereto (in each case filed on or after October 1, 2003) provide for greater individual liability, a director or officer is not individually liable to a corporation or its stockholders or creditors for any
damages as a result of any act or failure to act in his or her capacity as a director or officer unless the presumption established by Section 78.138(3) of the Nevada Revised Statutes has been rebutted and it is proven that (i) the
directors or officers act or failure to act constituted a breach of his or her fiduciary duties as a director or officer and (ii) such breach involved intentional misconduct, fraud or a knowing violation of law.
The Registrants Amended and Restated Bylaws, as well as individual indemnification agreements the Registrant has entered into with
directors of the corporation:
(a) provide for mandatory indemnification, to the fullest extent permitted by law, of
any present or former director or officer of the Registrant or any of its affiliates or subsidiaries who has served as such a director or officer on or after November 5, 2008 (each, an indemnitee) for all expenses, liabilities, losses or other
specified amounts resulting from a legal proceeding arising from any occurrence that takes place after November 5, 2008 and that relates to the fact that such indemnitee is or was a director or officer of the Registrant or any of its affiliates
or subsidiaries or at the request of the Registrant served in one of several specified capacities with respect to another entity;
(b) provide that the Registrant is not required to indemnify an indemnitee in connection with any legal proceeding
initiated by the indemnitee except under certain specified circumstances;
(c) require the advancement of expenses
to an indemnitee upon receipt of an undertaking by the indemnitee to repay if it is ultimately determined that the indemnitee is not entitled to be indemnified by the Registrant;