suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and that, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.”
Subsection (2) of Section 78.751 empowers a corporation to “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 he 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 amounts paid in settlement and attorneys’ fees
actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation.
Indemnification 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 all appeals 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 indemnify for such expenses as the court deems proper.”
Subsection 78.751(3) further provides
that “to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections 1 and 2, or in defense of any claim,
issue or matter herein, he must be indemnified by the corporation against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with the defense.”
(b) Article VII of Odyssey’s Articles of Incorporation provides that Odyssey is authorized to indemnify
directors, officers, employees and agents to the full extent allowed for under the Nevada Business Corporation Act.
(c) Article XI of the Articles of Incorporation of Odyssey provides that no director, officer or stockholder of
Odyssey shall be personally liable for damages for breach of fiduciary duty as a director or officer; provided, that this provision shall not eliminate liability of a director or officer for acts or omissions involving intentional misconduct, fraud
or a knowing violation of law or payments or distributions in violation of Nevada law.
(d) In addition, Odyssey has
entered into indemnification agreements with its directors that provide, among other things, that it must, subject to specified exceptions:
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indemnify the director to the full extent authorized or permitted by applicable law;
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maintain insurance policies for the benefit of the director that are applicable for so long as the director
continues to serve as a director and thereafter for so long as a director is subject to any possible or threatened claim or action relating to the director’s service as a director; and
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indemnify the director against all expenses, fines, fees and amounts paid in settlement or incurred by the
director in connection with a threatened, pending or completed action relating to the director’s service as a director.
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