STANDARD OF CONDUCT, NOR AN ACTUAL
DETERMINATION BY THE REVIEWING PERSON THAT THE INDEMNITEE HAD NOT MET SUCH
APPLICABLE STANDARD OF CONDUCT, SHALL BE A DEFENSE TO THE ACTION OR CREATE A
PRESUMPTION THAT THE INDEMNITEE HAS NOT MET THE APPLICABLE STANDARD OF CONDUCT.
4.
THE COMPANY SHALL BE ENTITLED TO
PARTICIPATE AT ITS EXPENSE IN ANY PROCEEDING FOR WHICH INDEMNITEE MAY BE
ENTITLED TO INDEMNITY HEREUNDER, AND IT MAY
5
ASSUME THE DEFENSE THEREOF WITH COUNSEL SATISFACTORY TO THE INDEMNITEE UNLESS
THE INDEMNITEE REASONABLY CONCLUDES THAT THERE MAY BE A CONFLICT OF INTEREST
BETWEEN THE COMPANY AND THE INDEMNITEE IN THE CONDUCT OF SUCH DEFENSE.
5.
CHANGE IN CONTROL.
IF THERE IS A
CHANGE IN CONTROL (OTHER THAN A CHANGE IN CONTROL WHICH HAS BEEN APPROVED BY A
MAJORITY OF THE DIRECTORS WHO WERE DIRECTORS IMMEDIATELY PRIOR TO SUCH CHANGE IN
CONTROL AND WERE OR ARE DEEMED TO HAVE BEEN MEMBERS OF THE INCUMBENT BOARD),
THEN (I) FOR THE PURPOSE OF ALL AUTHORIZATIONS AND DETERMINATIONS PURSUANT TO
THE FIRST SENTENCE OF SECTION 3 HEREOF AND K.S.A. 17-6305, THE REVIEWING PARTY
SHALL BE INDEPENDENT LEGAL COUNSEL AND (II) WITH RESPECT TO ALL MATTERS
THEREAFTER ARISING CONCERNING THE RIGHTS OF INDEMNITEE TO INDEMNIFICATION AND
EXPENSE ADVANCES UNDER THIS AGREEMENT, THE COMPANY (INCLUDING THE BOARD OF
DIRECTORS) SHALL SEEK LEGAL ADVICE FROM (AND ONLY FROM) SPECIAL, INDEPENDENT
COUNSEL SELECTED BY INDEMNITEE AND APPROVED BY THE COMPANY (WHICH APPROVAL SHALL
NOT BE UNREASONABLY WITHHELD), AND WHO (EXCEPT IN CONNECTION WITH SUCH MATTERS)
HAS NOT PERFORMED SERVICES FOR THE COMPANY (OR ANY SUBSIDIARY OF THE COMPANY) OR
AN ACQUIRING PERSON, ANY AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON, OR
INDEMNITEE WITHIN THE FIVE-YEAR PERIOD PRIOR TO THE EARLIEST DATE AS OF WHICH
INDEMNITEE FIRST HAS ACTUAL KNOWLEDGE OF THE RELEVANT INDEMNIFIABLE CLAIM.
UNLESS INDEMNITEE HAS THERETOFORE SELECTED COUNSEL PURSUANT TO THIS SECTION 4
AND SUCH COUNSEL HAS BEEN APPROVED BY THE COMPANY, ANY APPROVED LAW FIRM
SELECTED BY INDEMNITEE SHALL BE DEEMED TO BE APPROVED BY THE COMPANY.
SUCH
COUNSEL, AMONG OTHER THINGS, SHALL RENDER THEIR WRITTEN OPINION TO THE COMPANY,
THE BOARD OF DIRECTORS AND INDEMNITEE AS TO WHETHER AND TO WHAT EXTENT
INDEMNITEE IS ENTITLED TO BE INDEMNIFIED UNDER APPLICABLE LAW.
THE COMPANY
AGREES TO PAY THE REASONABLE FEES OF THE SPECIAL, INDEPENDENT COUNSEL REFERRED
TO ABOVE AND TO FULLY INDEMNIFY SUCH COUNSEL, TO THE EXTENT NOT PROHIBITED BY
APPLICABLE RULES OF PROFESSIONAL CONDUCT, AGAINST ANY AND ALL EXPENSES
(INCLUDING ATTORNEYS' FEES), CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR COUNSEL'S ENGAGEMENT PURSUANT HERETO.
AS USED IN
THIS AGREEMENT, THE TERMS "AFFILIATE" AND "ASSOCIATE" SHALL HAVE THE RESPECTIVE
MEANINGS ASCRIBED TO SUCH TERMS IN RULE 12B-2 OF THE GENERAL RULES AND
REGULATIONS UNDER THE EXCHANGE ACT AS IN EFFECT ON THE DATE OF THIS AGREEMENT.
6.
INDEMNIFICATION FOR ADDITIONAL
EXPENSES.
THE COMPANY SHALL INDEMNIFY INDEMNITEE AGAINST ANY AND ALL EXPENSES
(INCLUDING ATTORNEYS' FEES) THAT ARE REASONABLY INCURRED BY INDEMNITEE IN
CONNECTION WITH ANY CLAIM SUCCESSFULLY ASSERTED,