NVIDIA 2006 Annual Report Download - page 125

(c) Expenses. The corporation shall advance to 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, by reason
of the fact that he is or was a director or executive officer, of the corporation, or is or was serving at the request of the corporation as a
director or executive officer of another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of
the proceeding, promptly following request therefor, all expenses incurred by any director or executive officer in connection with such
proceeding; provided, however, that if the DGCL requires, an advancement of expenses incurred by a director or an executive officer
in his or her capacity as a director or an executive officer (and not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the corporation of
an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”)
that such indemnitee is not entitled to be indemnified for such expenses under this Section 46 or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (e) of this Section 46, no advance shall be
made by the corporation to an executive officer of the corporation (except by reason of the fact that such executive officer is or was a
director of the corporation, in which event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, if a determination is reasonably and promptly made (i) by a majority vote of directors who were not
parties to the proceeding, even if not a quorum, or (ii) by a committee of such directors designated by a majority vote of such
directors, even though less than a quorum, or (iii) if there are no such directors, or such directors so direct, by independent legal
counsel in a written opinion, that the facts known to the decision−making party at the time such determination is made demonstrate
clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to
the best interests of the corporation.
(d) Enforcement. Without the necessity of entering into an express contract, all rights to indemnification and
advances to directors and executive officers under this Section 46 shall be deemed to be contractual rights and be effective to the same
extent and as if provided for in a contract between the corporation and the director or executive officer. Any right to indemnification
or advances granted by this Section 46 to a director or executive officer shall be enforceable by or on behalf of the person holding
such right in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or
(ii) no disposition of such claim is made within ninety (90) days of request therefor. The claimant in such enforcement action, if
successful in whole or in part, shall be entitled to be paid also the expense of prosecuting the claim. In connection with any claim for
indemnification, the corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of
conduct that make it permissible under the DGCL or any other applicable law for the corporation to indemnify the claimant for the
amount claimed. In connection with any claim by an executive officer of the corporation (except in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact that such executive officer is or was a director of the
corporation) for advances, the corporation shall be entitled to raise a defense as to any such action clear and convincing evidence that
such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the
corporation, or with respect to any criminal action or proceeding that such person acted without reasonable cause to believe that his
conduct was lawful. Neither the failure of the corporation (including its directors who are not parties to such action, a committee of
such directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in
the DGCL or any other applicable law, nor an actual determination by the corporation (including its directors who are not parties to
such action, a committee of such directors, independent legal counsel or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of
conduct. In any suit brought by a director or executive officer to enforce a right to indemnification or to an advancement of expenses
hereunder or brought by the corporation to recover an advancement of expenses pursuant to the terms of any undertaking, the burden
of proving that the director or executive officer is not entitled to be indemnified, or to such advancement of expenses under this
Section 46 or otherwise shall be on the corporation.
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