SCHEDULE A
PLAN OF EXCHANGE UNDER CHAPTER 92A
OF THE NEVADA REVISED STATUTES
SECTION 1 - INTERPRETATION
1.1 Definitions. In this Plan of Exchange:
(a) "Common Shares" means common shares in the capital of Onlinetel
(b) "Common Shareholders" means holders of Common Shares.
(c) "Dissent Procedures" means the procedures to be strictly followed by
a dissenting Common Shareholder set at in Appendix I hereto.
(d) "Earnout Shares" means the Eiger Common Shares to be issued to the
Common Shareholders on a pro rata basis if Onlinetel achieves the
revenue and net income (before tax) milestones set out in Subsection
3.1(b) hereto.
(e) "Effective Date" means the date of filing of articles of Exchange
with the Secretary of State.
(f) "Eiger" means Eiger Technology, Inc., a corporation incorporated
under the laws of British Columbia, Canada and continued pursuant to
the laws of Ontario, Canada, having its head office situated at 330
Bay Street, Suite 602, Toronto, Ontario, Canada M5H 2S.
(g) "Eiger Common Shares" means the common shares of Eiger.
(h) "Exchange" means an exchange under the provisions of Chapter 92A of
the NRS, on the terms and conditions set forth in this Plan of
Exchange and any amendment or variation thereto made in accordance
with the terms of the Exchange Agreement.
(i) "Exchange" Agreement" means the exchange agreement dated as of
August 3, 2001 between Onlinetel, certain principal Common
Shareholders, Eiger and 3927237 Canada Ltd. to which this Plan of
Exchange is attached as Schedule A.
(j) "Fiscal Years" means collectively, the fiscal years of Onlinetel
ending December 31, 2002, December 31, 2003, December 31, 2004 and
December 31, 2005 and "Fiscal Year" means one of such Fiscal Years.
(k) "Letter of Transmittal" means the letter of transmittal provided by
Onlinetel to Common Shareholders.
(l) "NRS" means the Nevada Revised Statutes, as amended.
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(m) "Onlinetel" means Onlinetel Inc., a company incorporated under the
laws of Nevada having its head office situated at 30 Duke Street,
Suite 701, Kitchener, Ontario, Canada N2H 3W5.
(n) "Plan of Exchange", "hereof", "herein", "hereunder" and similar
expressions refer to this Plan or Exchange, and not any particular
article, section or other portion hereof.
(o) "Secretary of State" means the Secretary of State for the State of
Nevada.
(p) "Subco means 3927237 Canada Ltd., a wholly-owned subsidiary of Eiger
incorporated under the federal laws of Canada for the purpose of
carrying out the Exchange and having its head office situated at 330
Bay Street, Suite 602, Toronto, Ontario, Canada M5H 2S8.
(q) "Transfer Agent" means Pacific Corporate Trust Company at its
principal office in Vancouver, BC, Canada.
1.2 Headings and References. The division of this Plan of Exchange into Sections
and the insertion of headings are for convenience or reference only and do not
affect the construction or interpretation of this Plan of Exchange. Unless
otherwise specified, references to Sections or Appendices are to Sections of,
and Appendices to, this Plan of Exchange.
1.3 Currency. All references to currency in this Plan of Exchange are to
Canadian dollars.
1.4 Time. Unless otherwise indicated, all times expressed herein are local time,
Toronto, Ontario.
1.5 Appendices. The following appendices attached hereto form part of this Plan
of Exchange.
Appendix I - Dissent Procedures
SECTION 2 - EXCHANGE AGREEMENT
2.1 Exchange Agreement. This Plan of Exchange is made pursuant to, is subject
to the provisions of, and forms part of the Exchange Agreement.
SECTION 3 - THE EXCHANGE
3.1 The Exchange. On the Effective Date, the following will occur and will be
deemed to occur without any further act or formality:
(a) each issued and outstanding Common Share will be acquired by Subco
in exchange for 0.0953 of an Eiger Common Share; and
(b) Common Shareholders will have the right to receive up to 0.3813 of
an Earnout Share as consideration for each Common Share acquired by
Subco on the following basis:
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(1) If Eiger receives an audited financial statements of Onlinetel
in respect of a Fiscal Year evidencing that both the revenue
and net income (before tax) targets in respect of that Fiscal
Year as set out below have been met or exceeded, Eiger shall,
within twenty (20) business days of its receipt of such
financial statements issue 1,800,000 Earnout Shares to the
former Common Shareholders pro rata to the percentage of
Common Shares held by each Shareholder at the time of
exchange.
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Fiscal Year 2002 2003 2004 2005
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Revenue $19,083,488 $37,347,766 $50,849,180 $59,867,184
- --------------------------------------------------------------------------------
Net Income
(before tax) $ 2,442,015 $ 6,212,532 $ 9,352,747 $13,848,741
- --------------------------------------------------------------------------------
(2) In the event that Onlinetel does not achieve both the revenue
and net income targets for a given Fiscal Year (a "Deficient
Fiscal Year"), the Earnout Shares for the Deficient Fiscal
Year shall not be forfeited but instead, the entitlement to
the Earnout Shares will be carried forward as provided below
to a maximum time limit of 2010.
(3) If in any subsequent fiscal year of Onlinetel (which need not
be a Fiscal Year as defined), Onlinetel achieves cumulative
revenue and net income when combined with that of all fiscal
years ending after December 31, 2001 (all of which need not be
Fiscal Years as defined) equal to or greater than the revenue
and net income for the Deficient Fiscal Year (after deducting
revenue and net income for all Fiscal Years in respect of
which Earnout Shares have been issued), the Earnout Shares for
the Deficient Fiscal Year shall be immediately issued, in
addition to any entitlement to receive Earnout Shares in
respect of the current Fiscal Year.
(4) In the event that in respect of a current Fiscal Year
Onlinetel achieves both the revenue and net income targets
applicable to a future Fiscal Year, the Earnout Shares in
respect of that future Fiscal Year and all prior Fiscal Years
shall be immediately issued to the Shareholders.
(5) In the event that any of Eiger, Subco or Onlinetel is sold or
completes a transaction which, directly or indirectly, results
in a change of control, all Earnout Shares, to the extent not
previously issued, and if the revenue and income targets above
stated have been accomplished at the date of takeover, shall
be immediately issued to the Common Shareholders.
3.2 Fractional Shares. Notwithstanding anything herein contained, no
fractional Eiger Common Shares or Earnout Shares will be issued in
connection with this Plan of Exchange. Where the aggregate number of Eiger
Common Shares or Earnout Shares to be issued to a Common Shareholder would
result in a fraction of an Eiger Common Share or Earnout Share being
issued, such fractional interest shall be rounded up or down to the next
highest or lowest whole number of Eiger Common Shares.
3.3 Acquisition of Common Shares of Dissenting Holders. Each Common Share of a
dissenting Common Shareholder shall be, and shall be deemed to be,
transferred to
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Onlinetel for cancellation and cancelled contemporaneously with the
acquisition by Subco of Common Shares pursuant to Section 3.1 and such
holders shall thereupon have no rights or entitlements with respect to
those Common Shares except as provided in Section 4.
SECTION 4 - RIGHTS OF DISSENT
4.1 Rights of Dissent. Notwithstanding section 3.1, holders of Common Shares
may exercise rights of dissent in strict compliance with the Dissent
Procedures set forth in Appendix I.
SECTION 5 - CERTIFICATES
5.1 Right to Share Certificates
(a) Subject to Section 5.2, as soon as practicable following the
Effective Date or the date upon which any Earnout Shares are
required to be issued, as the case may be, where a Common
Shareholder has delivered to the Transfer Agent a duly completed
Letter of Transmittal and the certificates representing such
holder's Common Shares, Eiger will cause the Transfer Agent either:
(1) to forward or cause to be forwarded by first class insured
mail to the Common Shareholder at the address specified in the
Letter of Transmittal, or
(2) if the Letter of Transmittal does not specify an address, to
forward or cause to be forwarded to the Common Shareholder at
the address of the holder as shown on the share register
maintained by Onlinetel,
certificates representing the Eiger Common Shares or Earnout Shares,
as the case may be, required to be delivered to such Common
Shareholder pursuant to the provisions hereof.
(b) As soon as practicable following the Effective Date or the date upon
which any Earnout Shares are required to be issued, as the case may
be, where a Common Shareholder has not delivered a Letter of
Transmittal and certificates contemplated by Subsection 5.1(a) and
has not exercised rights of dissent in accordance with Section 4.1,
Eiger will cause the Transfer Agent to make available at the
principal office of the Transfer Agent in Vancourer certificates
representing the Eiger Common Shares and, if applicable, Earnout
Shares, required to be delivered to such Common Shareholder pursuant
to the provisions hereof upon presentation of the certificates
evidencing such Common Shares.
5.2 Registration. Unless otherwise directed by the Letter of Transmittal, the
certificates representing the Eiger Common Shares and Earnout Shares
referred to in Section 5.1 will be issued in the name of the registered
holder of the Common Shares acquired.
5.3 Idem. Subject to Section 5.1, at and after the Effective Date, any
certificate formerly representing Common Shares will represent only the
right to receive Eiger Common Shares and Earnout Shares in accordance with
this Plan of Exchange.
APPENDIX I
DISSENT PROCEDURES
NRS 92A.300 Definitions. As used in NRS 92A.300 to 92A.500, inclusive,
unless the context otherwise requires, the words and terms defined in NRS
92A.305 to 92A.335, inclusive, have the meanings ascribed to them in those
sections.
(Added to NRS by 1995, 2086)
NRS 92A.305 "Beneficial stockholder" defined. "Beneficial stockholder"
means a person who is a beneficial owner of shares held in a voting trust or by
a nominee as the stockholder of record.
(Added to NRS by 1995, 2087)
NRS 92A.310 "Corporate action" defined. "Corporate action" means the
action of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.315 "Dissenter" defined. "Dissenter" means a stockholder who is
entitled to dissent from a domestic corporation's action under NRS 92A.380 and
who exercises that right when and in the manner required by NRS 92A.400 to
92A.480, inclusive.
(Added to NRS by 1995, 2087; A 1999, 1631)
NRS 92A.320 "Fair value" defined. "Fair value," with respect to a
dissenter's shares, means the value of the shares immediately before the
effectuation of the corporate action to which he objects, excluding any
appreciation or depreciation in anticipation of the corporate action unless
exclusion would be inequitable.
(Added to NRS by 1995, 2087)
NRS 92A.325 "Stockholder" defined. "Stockholder" means a stockholder of
record or a beneficial stockholder of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.330 "Stockholder of record" defined. "Stockholder of record" means
the person in whose name shares are registered in the records of a domestic
corporation or the beneficial owner of shares to the extent of the rights
granted by a nominee's certificate on file with the domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.335 "Subject corporation" defined. "Subject corporation" means the
domestic corporation which is the issuer of the shares held by a dissenter
before the corporate action creating the dissenter's rights becomes effective or
the surviving or acquiring entity of that issuer after the corporate action
becomes effective.
(Added to NRS by 1995, 2087)
NRS 92A.340 Computation of interest. Interest payable pursuant to NRS
92A.300 to 92A.500, inclusive, must be computed from the effective date of the
action until the date of payment, at the average rate currently paid by the
entity on its principal bank loans or, if it has no bank loans, at a rate that
is fair and equitable under all of the circumstances.
(Added to NRS by 1995, 2087)
NRS 92A.350 Rights of dissenting partner of domestic limited partnership.
A partnership agreement of a domestic limited partnership or, unless otherwise
provided in the partnership agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the partnership interest of a
dissenting general or limited partner of a domestic limited partnership are
available for any class or group of partnership interests in connection with any
merger or exchange in which the domestic limited partnership is a constituent
entity.
(Added to NRS by 1995, 2088)
NRS 92A.360 Rights of dissenting member of domestic limited-liability
company. The articles of organization or operating agreement of a domestic
limited-liability company or, unless otherwise provided in the articles of
organization or operating agreement, an agreement of merger or exchange, may
provide
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that contractual rights with respect to the interest of a dissenting member are
available in connection with any merger or exchange in which the domestic
limited-liability company is a constituent entity.
(Added to NRS by 1995, 2088)
NRS 92A.370 Rights of dissenting member of domestic nonprofit corporation.
1. Except as otherwise provided in subsection 2, and unless otherwise
provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice,
but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his resignation
and is thereby entitled to those rights, if any, which would have existed if
there had been no merger and the membership had been terminated or the member
had been expelled.
2. Unless otherwise provided in its articles of incorporation or bylaws,
no member of a domestic nonprofit corporation, including, but not limited to, a
cooperative corporation, which supplies services described in chapter 704 of NRS
to its members only, and no person who is a member of a domestic nonprofit
corporation as a condition of or by reason of the ownership of an interest in
real property, may resign and dissent pursuant to subsection 1.
(Added to NRS by 1995, 2088)
NRS 92A.380 Right of stockholder to dissent from certain corporate actions
and to obtain payment for shares.
1. Except as otherwise provided in NRS 92A.370 and 92A.390, a stockholder
is entitled to dissent from, and obtain payment of the fair value of his shares
in the event of any of the following corporate actions:
(a) Consummation of a plan of merger to which the domestic corporation is
a party:
(1) If approval by the stockholders is required for the merger by
NRS 92A.120 to 92A.160, inclusive, or the articles of incorporation and he is
entitled to vote on the merger; or
(2) If the domestic corporation is a subsidiary and is merged with
its parent under NRS 92A.180.
(b) Consummation of a plan of exchange to which the domestic corporation
is a party as the corporation whose subject owner's interests will be acquired,
if he is entitled to vote on the plan.
(c) Any corporate action taken pursuant to a vote of the stockholders to
the event that the articles of incorporation, bylaws or a resolution of the
board of directors provides that voting or nonvoting stockholders are entitled
to dissent and obtain payment for their shares.
2. A stockholder who is entitled to dissent and obtain payment under NRS
92A.300 to 92A.500, inclusive, may not challenge the corporate action creating
his entitlement unless the action is unlawful or fraudulent with respect to him
or the domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.390 Limitations on right of dissent: Stockholders of certain
classes or series; action of stockholders not required for plan of merger.
1. There is no right of dissent with respect to a plan of merger or
exchange in favor of stockholders of any class or series which, at the record
date fixed to determine the stockholders entitled to receive notice of and to
vote at the meeting at which the plan of merger or exchange is to be acted on,
were either listed on a national securities exchange, included in the national
market system by the National Association of Securities Dealers, Inc., or held
by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the shares
provide otherwise; or
(b) The holders of the class or series are required under the plan of
merger or exchange to accept for the shares anything except:
(1) Cash, owner's interests or owner's interests and cash in lieu of
fractional owner's interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of the plan
of merger or exchange, were either listed on a national securities exchange,
included in the national market system by the National Association of Securities
Dealers, Inc., or held of record by a least 2,000 holders of owner's interests
of record; or
(2) A combination of cash and owner's interests of the kind
described in sub-subparagraphs (I) and (II) of subparagraph (1) of paragraph (b)
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2. There is no right of dissent for any holders of stock of the surviving
domestic corporation if the plan of merger does not require action of the
stockholders of the surviving domestic corporation under NRS 92A.130.
(Added to NRS by 1995, 2088)
NRS 92A.400 Limitations on right of dissent: Assertion as to portions only
to shares registered to stockholder; assertion by beneficial stockholder.
1. A stockholder of record may assert dissenter's rights as to fewer than
all of the shares registered in his name only if he dissents with respect to all
shares beneficially owned by any one person and notifies the subject corporation
in writing of the name and address of each person on whose behalf he asserts
dissenter's rights. The rights of a partial dissenter under this subsection are
determined as if the shares as to which he dissents and his other shares were
registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter's rights as to shares
held on his behalf only if:
(a) He submits to the subject corporation the written consent of the
stockholder of record to the dissent not later than the time the beneficial
stockholder asserts dissenter's rights; and
(b) He does so with respect to all shares of which he is the beneficial
stockholder or over which he has power to direct the vote.
(Added to NRS by 1995, 2089)
NRS 92A.410 Notification of stockholders regarding right of dissent.
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, the notice of the meeting must state that
stockholders are or may be entitled to assert dissenters' rights under NRS
92A.300 to 92A.500, inclusive, and be accompanied by a copy of those sections.
2. If the corporate action creating dissenters' rights is taken by written
consent of the stockholders or without a vote of the stockholders, the domestic
corporation shall notify in writing all stockholders entitled to assert
dissenters' rights that the action was taken and send them the dissenter's
notice described in NRS 92A.430.
(Added to NRS by 1995, 2089; A 1997, 730)
NRS 92A.420 Prerequisites to demand for payment for shares.
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, a stockholder who wishes to assert
dissenter's rights:
(a) Must deliver to the subject corporation, before the vote is taken,
written notice of his intent to demand payment for his shares if the proposed
action is effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. A stockholder who does not satisfy the requirements of subsection 1 and
NRS 92A.400 is not entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2089; 1999, 1631)
NRS 92A.430 Dissenter's notice: Delivery to stockholders entitled to
assert rights; contents.
1. If a proposed corporate action creating dissenters' rights is
authorized at a stockholders' meeting, the subject corporation shall deliver a
written dissenter's notice to all stockholders who satisfied the requirements to
assert those rights.
2. The dissenter's notice must be sent no later than 10 days after the
effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where and when
certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates to what
extent the transfer of the shares will be restricted after the demand for
payment is received;
(c) Supply a form for demanding payment that includes the date of the
first announcement to the news media or to the stockholders of the terms of the
proposed action and requires that the person asserting dissenter's rights
certify whether or not he acquired beneficial ownership of the shares before
that date;
(d) Set a date by which the subject corporation must receive the demand
for payment, which may not be less than 30 nor more than 60 days after the date
the notice is delivered; and
(e) Be accompanied by a copy of NRS 92A.300 to 92A.500, inclusive.
(Added to NRS by 1995, 2089)
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NRS 92A.440 Demand for payment and deposit of certificates; retention of
rights of stockholder.
1. A stockholder to whom a dissenter's notice is sent must:
(a) Demand payment;
(b) Certify whether he acquired beneficial ownership of the shares before
the date required to be set forth in the dissenter's notice for this
certification; and
(c) Deposit his certificates, if any, in accordance with the terms of the
notice.
2. The stockholder who demands payment and deposits his certificates, if
any, before the proposed corporate action is taken retains all other rights of a
stockholder until those rights are canceled or modified by the taking of the
proposed corporate action.
3. The stockholder who does not demand payment or deposit his certificates
where required, each by the date set forth in the dissenter's notice, is not
entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2090; A 1997, 730)
NRS 92A.450 Uncertificated shares: Authority to restrict transfer after
demand for payment; retention of rights of stockholder.
1. The subject corporation may restrict the transfer of shares not
represented by a certificate from the date the demand for their payment is
received.
2. The person for whom dissenter's rights are asserted as to shares not
represented by a certificate retains all other rights of a stockholder until
those rights are canceled or modified by the taking of the proposed corporate
action.
(Added to NRS by 1995, 2090)
NRS 92A.460 Payment for shares: General requirements.
1. Except as otherwise provided in NRS 92A.470, within 30 days after
receipt of a demand for payment, the subject corporation shall pay each
dissenter who complied with NRS 92A.440 the amount the subject corporation
estimates to be the fair value of his shares, plus accrued interest. The
obligation of the subject corporation under this subsection may be enforced by
the district court:
(a) Of the county where the corporation's registered office is located; or
(b) At the election of any dissenter residing or having its registered
office in this state, of the county where the dissenter resides or has its
registered office. The court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation's balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, a statement of income
for that year, a statement of changes in the stockholders' equity for that year
and the latest available interim financial statements, if any;
(b) A statement of the subject corporation's estimate of the fair value of
the shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter's rights to demand payment under NRS
92A.480; and
(e) A copy of NRS 92A.300 to 92A.500, inclusive.
(Added to NRS by 1995, 2090)
NRS 92A.470 Payment for shares: Shares acquired on or after date of
dissenter's notice.
1. A subject corporation may elect to withhold payment from a dissenter
unless he was the beneficial owner of the shares before the date set forth in
the dissenter's notice as the date of the first announcement to the news media
or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment, after
taking the proposed action, it shall estimate the fair value of the shares, plus
accrued interest, and shall offer to pay this amount to each dissenter who
agrees to accept it in full satisfaction of his demand. The subject corporation
shall send with its offer a statement of its estimate of the fair value of the
shares, an explanation of how the interest was calculated, and a statement of
the dissenters' right to demand payment pursuant to NRS 92A.480.
(Added to NRS by 1995, 2091)
NRS 92A.480 Dissenter's estimate of fair value: Notification of subject
corporation; demand for payment of estimate.
1. A dissenter may notify the subject corporation in writing of his own
estimate of the fair value of his shares and the amount of interest due, and
demand payment of his estimate, less any payment pursuant to NRS 92A.460, or
reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of
his shares and interest due, if he believes that the amount paid pursuant to NRS
92A.460 or offered pursuant to NRS 92A.470 is less than the fair value of his
shares or that the interest due is incorrectly calculated.
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2. A dissenter waives his right to demand payment pursuant to this section
unless he notifies the subject corporation of his demand in writing within 30
days after the subject corporation made or offered payment for his shares.
(Added to NRS by 1995, 2091)
NRS 92A.490 Legal proceeding to determine fair value: Duties of subject
corporation; powers of court; rights of dissenter.
1. If a demand for payment remains unsettled, the subject corporation
shall commence a proceeding within 60 days after receiving the demand and
petition the court to determine the fair value of the shares and accrued
interest. If the subject corporation does not commence the proceeding within the
60-day period, it shall pay each dissenter whose demand remains unsettled the
amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its registered office is located. If the subject
corporation is a foreign entity without a resident agent in the state, it shall
commence the proceeding in the county where the registered office of the
domestic corporation merged with or whose shares were acquired by the foreign
entity was located.
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the proceeding
as in an action against their shares. All parties must be served with a copy of
the petition. Nonresidents may be served by registered or certified mail or by
publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced
under subsection 2 is plenary and exclusive. The court may appoint one or more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value. The appraisers have the powers described in the order
appointing them, or any amendment thereto. The dissenters are entitled to the
same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a
judgment:
(a) For the amount, if any, by which the court finds the fair value of his
shares, plus interest, exceeds the amount paid by the subject corporation; or
(b) For the fair value, plus accrued interest, of his after-acquired
shares for which the subject corporation elected to withhold payment pursuant to
NRS 92A.470.
(Added to NRS by 1995, 2091)
NRS 92A.500 Legal proceeding to determine fair value: Assessment of costs
and fees.
1. The court in a proceeding to determine fair value shall determine all
of the costs of the proceeding, including the reasonable compensation and
expenses of any appraisers appointed by the court. The court shall assess the
costs against the subject corporation, except that the court may assess costs
against all or some of the dissenters, in amounts the court finds equitable, to
the extent the court finds the dissenters acted arbitrarily, vexatiously or not
in good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and
experts for the respective parties, in amounts the court finds equitable:
(a) Against the subject corporation and in favor of all dissenters if the
court finds the subject corporation did not substantially comply with the
requirements of NRS 92A.300 to 92A.500, inclusive; or
(b) Against either the subject corporation or a dissenter in favor of any
other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously or not in good faith with
respect to the rights provided by NRS 92A.300 to 92A.500, inclusive.
3. If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the fees
for those services should not be assessed against the subject corporation, the
court may award to those counsel reasonable fees to be paid out of the amounts
awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS 92A.460, the court may assess
the costs against the subject corporation, except that the court may assess
costs against all or some of the dissenters who are parties to the proceeding,
in amounts the court finds equitable, to the extent the court finds that such
parties did not act in good faith in instituting the proceeding.
5. This section does not preclude any party in a proceeding commenced
pursuant to NRS 92A.460 or 92A.490 from applying the provisions of N.R.C.P. 68
or NRS 17.115.
(Added to NRS by 1995, 2092)