THAT INDEMNITEE HAS MET THE APPLICABLE STANDARD OF CONDUCT AND
4
THAT INDEMNIFICATION IS NOT PRECLUDED BY CIRCUMSTANCES DESCRIBED IN THE LAST
SENTENCE OF SECTION 2 OF THIS AGREEMENT.
IF THE REVIEWING PARTY IS INDEPENDENT
LEGAL COUNSEL, THE DETERMINATION SHALL BE MADE IN A WRITTEN OPINION.
B.
THE COMPANY SHALL PROMPTLY CALL A
MEETING OF THE BOARD OF DIRECTORS WITH RESPECT TO A CLAIM AND AGREES TO USE ITS
BEST EFFORTS TO FACILITATE A PROMPT DETERMINATION BY THE REVIEWING PARTY WITH
RESPECT TO THE CLAIM. INDEMNITEE SHALL BE AFFORDED THE OPPORTUNITY TO MAKE
SUBMISSIONS TO THE REVIEWING PARTY WITH RESPECT TO THE CLAIM.
C.
THE COMPANY SHALL HAVE NO OBLIGATION
UNDER THIS AGREEMENT TO MAKE AN EXPENSE ADVANCE PURSUANT TO SECTION 2 WITH
RESPECT TO MATTERS DESCRIBED IN CLAUSES (Y) AND (Z) OF THE LAST SENTENCE OF
SECTION 2.
D.
THE OBLIGATION OF THE COMPANY TO MAKE AN
EXPENSE ADVANCE PURSUANT TO SECTION 2 SHALL ONLY BE SUBJECT TO THE CONDITION
THAT THE INDEMNITEE MUST FIRST DELIVER TO THE COMPANY A SIGNED, WRITTEN
UNDERTAKING TO REPAY THE EXPENSE ADVANCE (I) IF AND WHEN INDEMNITEE SETTLES ANY
PROCEEDING WITHOUT THE WRITTEN CONSENT OF THE COMPANY, WHICH CONSENT SHALL NOT
BE UNREASONABLY WITHHELD OR (II) IF, WHEN AND TO THE EXTENT THAT THE REVIEWING
PARTY DETERMINES THAT INDEMNITEE IS NOT ENTITLED TO BE INDEMNIFIED UNDER SECTION
2 AND APPLICABLE LAW; PROVIDED, HOWEVER, WITH RESPECT TO CLAUSE (II), THAT IF
INDEMNITEE HAS COMMENCED LEGAL PROCEEDINGS IN A COURT OF COMPETENT JURISDICTION
TO SECURE A DETERMINATION THAT INDEMNITEE IS ENTITLED TO BE INDEMNIFIED UNDER
SECTION 2, APPLICABLE LAW OR BOTH, ANY DECISION BY THE REVIEWING PARTY NOT TO
AUTHORIZE INDEMNIFICATION SHALL NOT BE BINDING AND INDEMNITEE SHALL NOT BE
REQUIRED TO REIMBURSE THE COMPANY FOR ANY EXPENSE ADVANCE UNTIL A FINAL JUDICIAL
DETERMINATION IS MADE WITH RESPECT THERETO AND ALL RIGHTS OF APPEAL THEREFROM
HAVE BEEN EXHAUSTED OR LAPSED.
E.
IF A CLAIM FOR INDEMNIFICATION OR
EXPENSE ADVANCE HAS NOT BEEN PAID IN FULL BY THE COMPANY WITHIN NINETY (90) DAYS
AFTER WRITTEN DEMAND IS PRESENTED TO THE COMPANY, INDEMNITEE SHALL HAVE THE
RIGHT TO COMMENCE LITIGATION IN ANY COURT IN THE STATE OF KANSAS HAVING SUBJECT
MATTER JURISDICTION THEREOF AND IN WHICH VENUE IS PROPER, SEEKING AN INITIAL
DETERMINATION BY THE COURT OR CHALLENGING ANY DETERMINATION BY THE REVIEWING
PARTY OR ANY ASPECT THEREOF, AND THE COMPANY HEREBY CONSENTS TO SERVICE OF
PROCESS AND AGREES TO APPEAR IN ANY SUCH PROCEEDING.
IT SHALL BE A DEFENSE TO
ANY SUCH ACTION (OTHER THAN AN ACTION BROUGHT TO ENFORCE A CLAIM FOR EXPENSES
INCURRED IN DEFENDING ANY PROCEEDING IN ADVANCE OF ITS FINAL DISPOSITION WHERE
THE REQUIRED UNDERTAKING HAS BEEN TENDERED TO THE COMPANY) THAT THE INDEMNITEE
HAS NOT MET THE APPLICABLE STANDARD OF CONDUCT, BUT THE BURDEN OF PROVING SUCH
DEFENSE SHALL BE ON THE COMPANY.
HOWEVER, NEITHER THE FAILURE OF THE REVIEWING
PARTY TO HAVE MADE A DETERMINATION PRIOR TO THE COMMENCEMENT OF SUCH ACTION THAT
THE INDEMNITEE HAS MET THE APPLICABLE