Common use of Basic Indemnification Agreement Clause in Contracts

Basic Indemnification Agreement. In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as soon as practicable but in no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following a Change in Control Indemnitee shall, unless prohibited by law, be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee.

Basic Indemnification Agreement. In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, law as soon as practicable but in no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes liabilities and amounts paid or to be paid in settlement losses (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenseswithout limitation, judgments, fines, ERISA excise taxes and penalties, excise taxes or and amounts paid or and to be paid in settlement, interest, assessments, and other charges imposed thereon, and any federal, state, local, or foreign taxes (increased by any taxes imposed by such payments) imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with any such Claim, providedor any issue or matter therein. If so requested by Indemnitee, however, that the Company shall not be required advance (within two (2) business days of that request) any and all Expenses to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or (an independent legal counsel chosen and approved by both the Company and Indemnitee“Expense Advance”). The Company’s obligation to indemnify Indemnitee under this paragraph Expense Advances shall be deemed mandatory in all cases unsecured and interest free and shall be made without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty ability to repay the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the location other provisions of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnificationAgreement. Notwithstanding anything in this Agreement or in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement By-Laws to the contrarycontrary and except as provided in Section 3 or in an Executive Agreement, following before a Change in Control Control, Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by IndemniteeIndemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of that Claim. The Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement which shall constitute an undertaking providing that the Indemnitee undertakes to the fullest extent permitted by law to repay the advance if and to the extent that it is ultimately determined by a final, non-appealable decision rendered by a court of competent jurisdiction, that Indemnitee is not entitled to be indemnified by the Company.

Basic Indemnification Agreement. Subject to the limitations set forth herein and in Section 9 hereof: (a) The Corporation shall indemnify the Indemnitee to the fullest extent authorized or permitted under the Florida Business Corporation Act (“FBCA”) and the provisions of the Articles of Incorporation and Bylaws in effect on the date hereof or as FBCA, the Articles of Incorporation, or Bylaws may be amended from time to time (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than were permitted prior to such amendment). The right to indemnification conferred in the Articles of Incorporation and Bylaws shall be presumed to have been relied upon by Indemnitee in serving or continuing to serve the Corporation or any Subsidiary or Affiliate as a director, officer, or other Agent and shall be enforceable as a contract right. The Corporation shall not adopt any amendments to its Articles of Incorporation or Bylaws, or permit any Subsidiary or Affiliate to adopt any amendments to its organic documents, the effect of which would be to deny, diminish, or encumber Indemnitee’s rights to indemnity pursuant to the Articles of Incorporation, Bylaws, or the FBCA, or any other applicable law, as applied to any act or failure to act occurring in whole or in part prior to the date upon which such amendment was approved by the Board of Directors or the Corporation’s shareholders, as the case may be (“Effective Date”). In the event that the Corporation shall adopt any amendment to its Articles or Incorporation or Bylaws, or any Subsidiary or Affiliate shall adopt any amendment to its organic documents, the effect of which is to deny, diminish, or encumber Indemnitee’s right to indemnity pursuant to the Articles of Incorporation, Bylaws, or such organic documents, as the case may be, or under the FBCA, or any other such law, such amendment shall apply only to acts of failures to act occurring entirely after the Effective Date thereof. The Corporation shall give notice of any such amendment to the Indemnitee. (b) Without in anyway diminishing the scope of the indemnification provided by this Section 3, and in addition to any other rights of indemnification which the Indemnitee wasmay have under the Articles of Incorporation, Bylaws, organic documents of any Subsidiary or Affiliate, or other contract right, the Corporation agrees to indemnify and hold the Indemnitee harmless (whenever the Indemnitee is or becomes was a party to or witness or other participant ina party, or is threatened to be made a party to or witness or other participant ina party, a Claim to any Proceeding, including without limitation any Proceeding brought by or in the right of the Corporation or any Subsidiary or Affiliate, by reason of (the fact that the Indemnitee is or arising in part out of) an Indemnifiable Eventwas a director, the Company shall indemnify Indemnitee (without regard to the negligence officer or other fault Agent of the IndemniteeCorporation or any Subsidiary or Affiliate, or by reason of anything done or not done, or alleged to have been done or not done, by the Indemnitee in such capacity) to against all Expenses and Liabilities actually and reasonably incurred by the fullest extent permitted by applicable law, as soon as practicable but in no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes and amounts paid Indemnitee or to be paid in settlement (including all interest, assessments and other charges paid on his or payable her behalf in connection with the investigation, defense, testimony in, settlement, or in respect appeal of such ExpensesProceeding. The parties hereto intend that this Agreement shall provide for indemnification in excess of that expressly permitted by statute in the absence of an agreement. (c) In addition to, judgmentsand not as a limitation of, finesthe indemnification provided by this Section 3, penaltiesthe rights of indemnification of the Indemnity provided under this Agreement shall include those rights set forth in Sections 4, excise taxes or amounts paid or to be paid in settlement) 5, and 7 of or in connection with such Claimthis Agreement. Notwithstanding the provisions of this Section 3, provided, however, that the Company Corporation shall not be required to indemnify the Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance connection with a Proceeding commenced by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable Indemnitee (other than a Proceeding commenced by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both Indemnity to enforce the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee rights under this paragraph shall be deemed mandatory in all cases without regard to Agreement) unless the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status commencement of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused Proceeding was authorized by the spouseBoard of Directors. (d) The Corporation’s or child’s own acts. If Indemnitee makes a request obligations to be indemnified make payments under this Agreement (which request need are not subject to diminution by set-off, counterclaim, abatement, or otherwise. However, the Indemnitee will not be made prior released from any liability or obligations owed to the incurrence of any Indemnifiable Expenses)Corporation, the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or whether under this Agreement to the contrary, following a Change in Control Indemnitee shall, unless prohibited by law, be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemniteeor otherwise.

Basic Indemnification Agreement. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as soon as practicable but in any event no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes penalties and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes penalties or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following a Change in Control Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. If so requested by Indemnitee, the Company shall advance (within two business days of such request) any and all Expenses to Indemnitee (an “Expense Advance”). Any and all Expense Advances shall be made without regard to Indemnitee’s ability to repay such amounts and without regard to Indemnitee’s ultimate entitlement to indemnification under this Agreement or otherwise. Any and all Expense Advances shall be made on an unsecured basis and be interest free. (b) Notwithstanding the foregoing, (i) the obligations of the Company to indemnify Indemnitee under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, (x) any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding, and (y) the Company shall continue to make Expenses Advances, and Indemnitee shall not be required to reimburse the Company for any Expense Advance, in each case until the final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in Indemnitee’s state of domicile or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any such adjudication shall be conducted in all aspects as a de novo trial on the merits, and any prior adverse determination shall not be referred to or introduced into evidence, create a presumption that Indemnitee is not entitled to indemnification or advancement of expenses, be a defense or otherwise adversely affect Indemnitee. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified under this Agreement, Indemnitee shall be entitled to a rebuttable presumption that he is entitled to such indemnification and the burden of proof shall be on the Company to come forward with evidence to establish and overcome the presumption that Indemnitee is not so entitled.

Basic Indemnification Agreement. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising airing in part party out of) ), an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as soon as practicable but in any event no event later than thirty days after written demand is presented to the Company, Company against any and all Expensesexpenses, judgments, fines, penalties, excise taxes and amounts paid or to be paid in settlement (including all interest, assessments assessments, and other charges paid or payable in connection with or in respect of such Expensesexpenses, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following prior to a Change in Control Control, Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. If so requested by Indemnitee, the Company shall advance (within two business days of such request) any and all Expenses to Indemnitee (an "Expense Advance"). (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 3(a) shall be subject to the condition that any Reviewing Party shall not have determined in a written opinion (in any case in which the Special Independent Counsel referred to in Section 4 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 3(a) shall be subject to the condition that if, when and to the extent that any Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company, without interest) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by a Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law 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 (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, a Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, a Reviewing Party shall be the Special Independent Counsel referred to in Section 4 hereof. If there has been no appointment or no determination by a Reviewing Party or if a Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of Wisconsin or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual basis therefor, and the Company hereby (i) consents to service of process and to appear in any such proceeding, (ii) shall be precluded from asserting that the procedures and presumptions of this Agreement are not valid, binding, and enforceable, and (iii) shall stipulate in any such proceeding that the Company is bound by all the provisions of this Agreement. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.

Basic Indemnification Agreement. Subject to the limitations set forth herein and in Section 9 hereof: (a) The Corporation shall indemnify the Indemnitee to the fullest extent authorized or permitted under the Florida Business Corporation Act the (“FBCA”) and the provisions of the Articles of Incorporation and the Bylaws in effect on the date hereof or as the FBCA, the Articles of Incorporation, or the Bylaws may be amended from time to time (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than were permitted prior to such amendment). The right to indemnification conferred in the Articles of Incorporation and the Bylaws shall be presumed to have been relied upon by the Indemnitee in serving or continuing to serve the Corporation or any Subsidiary or Affiliate as a director, officer, or other Agent and shall be enforceable as a contract right. The Corporation shall not adopt any amendments to its Articles of Incorporation or Bylaws, or permit any Subsidiary or Affiliate to adopt any amendments to its organic documents, the effect of which would be to deny, diminish, or encumber the Indemnitee’s rights to indemnity pursuant to the Articles of Incorporation, the Bylaws, or the FBCA, or any other applicable law, as applied to any act or failure to act occurring in whole or in part prior to the date upon which such amendment was approved by the Board of Directors or the Corporation’s shareholders, as the case may be (the “Effective Date”). In the event that the Corporation shall adopt any amendment to its Articles or Incorporation or Bylaws, or any Subsidiary or Affiliate shall adopt any amendment to its organic documents, the effect of which is to deny, diminish, or encumber the Indemnitee’s right to indemnity pursuant to the Articles of Incorporation, the Bylaws, or such organic documents, as the case may be, or under the FBCA, or any other such law, such amendment shall apply only to acts of failures to act occurring entirely after the Effective Date thereof. The Corporation shall give notice of any such amendment to the Indemnitee. (b) Without in anyway diminishing the scope of the indemnification provided by this Section 3, and in addition to any other rights of indemnification which the Indemnitee wasmay have under the Articles of Incorporation, Bylaws, organic documents of any Subsidiary or Affiliate, or other contract right, the Corporation agrees to indemnify and hold the Indemnitee harmless (whenever the Indemnitee is or becomes was a party to or witness or other participant ina party, or is threatened to be made a party to or witness or other participant ina party, a Claim to any Proceeding, including without limitation any Proceeding brought by or in the right of the Corporation or any Subsidiary or Affiliate, by reason of (the fact that the Indemnitee is or arising in part out of) an Indemnifiable Eventwas a director, the Company shall indemnify Indemnitee (without regard to the negligence officer or other fault Agent of the IndemniteeCorporation or any Subsidiary or Affiliate, or by reason of anything done or not done, or alleged to have been done or not done, by the Indemnitee in such capacity) to against all Expenses and Liabilities actually and reasonably incurred by the fullest extent permitted by applicable law, as soon as practicable but in no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes and amounts paid Indemnitee or to be paid in settlement (including all interest, assessments and other charges paid on his or payable her behalf in connection with the investigation, defense, testimony in, settlement, or in respect appeal of such ExpensesProceeding. The parties hereto intend that this Agreement shall provide for indemnification in excess of that expressly permitted by statute in the absence of an agreement. (c) In addition to, judgmentsand not as a limitation of, finesthe indemnification provided by this Section 3, penaltiesthe rights of indemnification of the Indemnity provided under this Agreement shall include those rights set forth in Sections 4, excise taxes or amounts paid or to be paid in settlement) 5, and 7 of or in connection with such Claimthis Agreement. Notwithstanding the provisions of this Section 3, provided, however, that the Company Corporation shall not be required to indemnify the Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance connection with a Proceeding commenced by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable Indemnitee (other than a Proceeding commenced by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both Indemnitee to enforce the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee rights under this paragraph shall be deemed mandatory in all cases without regard to Agreement) unless the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status commencement of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused Proceeding was authorized by the spouseBoard of Directors. (d) The Corporation’s or child’s own acts. If Indemnitee makes a request obligations to be indemnified make payments under this Agreement (which request need are not subject to diminution by set-off, counterclaim, abatement, or otherwise. However, the Indemnitee will not be made prior released from any liability or obligations owed to the incurrence of any Indemnifiable Expenses)Corporation, the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or whether under this Agreement to the contrary, following a Change in Control Indemnitee shall, unless prohibited by law, be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemniteeor otherwise.

Basic Indemnification Agreement. In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company Summit shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as soon as practicable but in no event later than thirty (30) days after written demand is presented to the CompanySummit, against any and all Expenses, judgments, fines, penalties, excise taxes and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, ; provided, however, that the Company Summit shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s Summit's obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s 's actual improper receipt of a personal benefit or profit or of Indemnitee’s 's active and deliberate dishonesty to the CompanySummit. The Company Summit shall indemnify Indemnitee’s 's spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child child, but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s 's or child’s 's own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“"Board Action”")) shall, as soon as practicable but in no event later than thirty (30) days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of IncorporationArticles, the Bylaws or the Partnership Agreement, each as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following a Change in Control Control, Indemnitee shall, unless prohibited by law, be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee.

Basic Indemnification Agreement. (i) In the event the Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify the Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted not prohibited by applicable law, as soon as practicable but in any event no event later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes penalties and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes penalties or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following prior to a Change in Control the Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by the Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. If so requested by the Indemnitee, the Company shall advance to the Indemnitee (within twenty (20) days of such request) any and all Expenses (an "Expense Advance"). (ii) Notwithstanding the foregoing, (a) the obligations of the Company under Section 2(B)(i) shall be subject to the condition that any Reviewing Party shall not have determined (in a written opinion, in any case in which the Special Independent Counsel referred to in Section 2(C) below is involved) that the Indemnitee would not be permitted to be indemnified under applicable law, and (b) the obligation of the Company to make an Expense Advance pursuant to Section 2(B)(i) shall be subject to the condition that if, when and to the extent that any Reviewing Party determines that the Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by the Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if the Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that the Indemnitee should be indemnified under applicable law, any determination made by a Reviewing Party that the Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and the Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial

Basic Indemnification Agreement. Subject to the limitations set forth herein and in Section 9 hereof: (a) The Corporation shall indemnify the Indemnitee to the fullest extent authorized or permitted under the Delaware General Corporation Law ("DGCL"), other applicable law, and the provisions of the Certificate of Incorporation and Bylaws in effect on the date hereof or as the DGCL, other applicable law, the Certificate of Incorporation or Bylaws may be amended from time to time (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than were permitted prior to such amendment). The right to indemnification conferred in the Certificate of Incorporation and Bylaws shall be presumed to have been relied upon by the Indemnitee in serving or continuing to serve the Corporation or any Subsidiary or Affiliate as a director, officer or other Agent and shall be enforceable as a contract right. The Corporation shall not adopt any amendments to its Certificate of Incorporation or Bylaws, or permit any Subsidiary or Affiliate to adopt any amendments to its organic documents, the effect of which would be to deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to the DGCL, any other applicable law, the Certificate of Incorporation or Bylaws, as applied to any act or failure to act occurring in whole or in part prior to the date upon which such amendment was approved by the Board of Directors or the Corporation's stockholders, as the case may be (the "Effective Date"). In the event that the Corporation shall adopt any amendment to its Certificate of Incorporation or Bylaws, or any Subsidiary or Affiliate shall adopt any amendment to its organic documents, the effect of which is to deny, diminish, or encumber the Indemnitee's right to indemnity pursuant to the Certificate of Incorporation, Bylaws, or such organic documents, as the case may be, such amendment shall apply only to acts of failures to act occurring entirely after the Effective Date thereof. The Corporation shall give notice of any such amendment to the Indemnitee. (b) Without in any way diminishing the scope of the indemnification provided by Section 3(a), and in addition to any other rights of indemnification which the Indemnitee wasmay have under the Certificate of Incorporation, Bylaws, organic documents of any Subsidiary or Affiliate, or other contract right, the Corporation agrees to indemnify and hold the Indemnitee harmless (whenever the Indemnitee is or becomes was a party to or witness or other participant inwitness, or is threatened to be made a party or witness, to or witness in any Proceeding, including, without limitation, any Proceeding brought by or other participant inin the right of the Corporation or any Subsidiary or Affiliate, a Claim by reason of (the fact that the Indemnitee is or arising in part out of) an Indemnifiable Eventwas a director, the Company shall indemnify Indemnitee (without regard to the negligence officer or other fault Agent of the IndemniteeCorporation or any Subsidiary or Affiliate, or by reason of anything done or not done, or alleged to have been done or not done, by the Indemnitee in such capacity) to against all Liabilities and Expenses actually and reasonably incurred by the fullest extent permitted by applicable law, as soon as practicable but in no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable Indemnitee in connection with the investigation, defense, testimony in, settlement, or in respect appeal of such Expenses, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and IndemniteeProceeding. The Company’s obligation to indemnify Indemnitee under parties hereto intend that this paragraph Agreement shall be deemed mandatory provide for indemnification in all cases without regard to the fault or negligence excess of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether expressly permitted by statute or at common law in the absence of an indemnity agreement. (c) In addition to, and without regard to not as a limitation of, the location of the governing jurisdictionindemnification provided by Section 3(a) and children to (b), the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out rights of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified indemnification under this Agreement shall include those rights set forth in Sections 4, 5, and 7 of this Agreement. (which request need d) The Corporation's obligations under this Agreement are not subject to diminution by set-off, counterclaim, abatement, or otherwise. However, the Indemnitee will not be made prior released from any liability or obligations owed to the incurrence of any Indemnifiable Expenses)Corporation, the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or whether under this Agreement to the contrary, following a Change in Control Indemnitee shall, unless prohibited by law, be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemniteeor otherwise.

Basic Indemnification Agreement. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of of, arising from, or relating to (or or, in each case, arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment and unless applicable law otherwise requires, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment) as soon as practicable but in any event no event later than thirty 30 days after written demand demand, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification (provided that documentation and information need not be so provided to the extent that the provision thereof would undermine or otherwise jeopardize attorney-client privilege) is presented to the Company, against any and all Expenses, judgmentsliabilities, finesdamages, penalties, excise taxes and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenseslosses, judgments, fines, penalties, excise taxes penalties or amounts paid in settlement incurred or to be paid in settlement) of by or on behalf of, or imposed against, Indemnitee in connection with such ClaimClaim and any federal, providedstate, however, that local or foreign taxes (net of the Company shall not be required value to indemnify Indemnitee for amounts paid of any tax benefits resulting from tax deductions or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, otherwise) imposed on Indemnitee as a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s the actual improper or deemed receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified any payments under this Agreement (including the creation of the trust referred to in Section 4 hereof). If so requested by Indemnitee (which request shall include therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification (provided that documentation and information need not be made prior so provided to the incurrence of any Indemnifiable Expensesextent that the provision thereof would undermine or otherwise jeopardize attorney-client privilege)), the Board Company shall advance (within five business days of Directors such request) any and all Expenses to Indemnitee (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board ActionExpense Advance”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement or in the Bylaws of the Company to the contrarycontrary and except as provided in Section 5, following prior to a Change in Control Control, and Section 2(b) and Section 9 hereof, Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim (i) initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim; (ii) made on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Company or its stockholders or is an act or omission not in good faith or which involves intentional misconduct or a knowing violation of the law; or (iii) arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). (b) Notwithstanding the foregoing, (i) the indemnification obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party, if required under applicable law, shall have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that the Company receives an undertaking that, if, when and to the extent that the Reviewing Party determines (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that (A) any determination referenced in clauses (i) and (ii) above as to whether Indemnitee would be permitted to be indemnified under applicable law (1) shall not be made until after the final disposition of the applicable Claim and (2) shall be made within 90 days of the final disposition of the Claim (in the case of clause (ii) above, if at all) and (B) if Indemnitee has commenced legal proceedings in the Court of Chancery of the State of Delaware (the “Delaware Court”) to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance (and the Company shall continue to be obligated to make Expense Advances) until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). Indemnitee’s obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board, and if there has been such a Change in Control (other than a Change in Control which has been approved by two-thirds or more of the Company’s Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, or with respect to the Company’s obligation to indemnify Indemnitee under Section 2(a), if a determination as to whether Indemnitee would be permitted to be indemnified under applicable law is required under applicable law and such determination is not made by the Reviewing Party within 90 days of the final disposition of the Claim, Indemnitee shall have the right to commence litigation in the Delaware Court seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, or the legal or factual bases therefor and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee. Notwithstanding any other provision in this Agreement, no indemnity or Expense Advance pursuant to Section 2(a) shall be paid by the Company if a court of competent jurisdiction renders a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed) on the merits that such indemnity or Expense Advance is prohibited by law or that Indemnitee is liable to the Company with respect to any Claim made by or in the right of the Company, unless the court determines that, despite the adjudication of liability, but in the view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to such indemnity or Expense Advance that the court deems proper. (c) If the full indemnity provided in Section 2(a) may not be paid to Indemnitee because of any exclusion resulting from Section 2(b), then in respect of any Claim relating to an Indemnifiable Event in which the Company is jointly liable with Indemnitee (or would be if joined in such Claim), the Company shall contribute to the amount of Expenses, liabilities, damages, losses, judgments, fines, penalties and amounts paid in settlement incurred by Indemnitee in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on the one hand and Indemnitee on the other hand from the acts or omissions from which such Claim arose and (ii) the relative fault of the Company, including its other directors, officers, agents, employees and other representatives, on the one hand and of Indemnitee on the other hand in connection with the acts or omissions which resulted in such Claim, as well as other relevant equitable considerations. The relative fault of the Company, including its other directors, officers, agents, employees and other representatives, on the one hand and of Indemnitee on the other hand shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Claim. The Company agrees that it would not be just and equitable if contribution pursuant to this Section 2(c) were determined by pro rata allocation or any other method of allocation which does not take into account the foregoing equitable considerations.

Basic Indemnification Agreement. (a) In the event the Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, law as soon as practicable but in any event no event later than thirty days after written demand is presented to the CompanyCompany by Indemnitee, against any and all Expenses, judgments, fines, penalties, excise taxes penalties and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes penalties or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following prior to a Change in Control the Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by the Indemnitee against the company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. If so requested by the Indemnitee, the Company shall advance (within two business days of such request) any and all Expenses to the Indemnitee (an "Expense Advance"). (b) Notwithstanding the foregoing, (i) the obligations of the Company under section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 is involved) that the Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that the Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by the Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, that if the Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that the Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that the Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and the Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been a Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3. If there has been no determination by the Reviewing Party or if the Reviewing Party determines, that the Indemnitee would not be permitted to be indemnified in whole or in past under applicable law, the Indemnitee shall have the right to commence litigation in any court in the state of New York or Nevada having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and the Indemnitee.

Basic Indemnification Agreement. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising airing in part party out of) ), an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as soon as practicable but in any event no event later than thirty days after written demand is presented to the Company, Company against any and all Expensesexpenses, judgments, fines, penalties, excise taxes and amounts paid or to be paid in settlement (including all interest, assessments assessments, and other charges paid or payable in connection with or in respect of such Expensesexpenses, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following prior to a Change in Control Control, Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee against the Company or any director (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 3(a) shall be subject to the condition that any Reviewing Party shall not have determined in a written opinion (in any case in which the Special Independent Counsel referred to in Section 4 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 3(a) shall be subject to the condition that if, when and to the extent that any Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company, without interest) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by a Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law 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 (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, a Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, a Reviewing Party shall be the Special Independent Counsel referred to in Section 4 hereof. If there has been no appointment or no determination by a Reviewing Party or if a Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Minnesota having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual basis therefor, and the Company hereby (i) consents to service of process and to appear in any such proceeding, (ii) shall be precluded from asserting that the procedures and presumptions of this Agreement are not valid, binding, and enforceable, and (iii) shall stipulate in any such proceeding that the Company is bound by all the provisions of this Agreement. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.

Basic Indemnification Agreement. In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as soon as practicable but in no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, providedprovided , howeverhowever , that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following a Change in Control Indemnitee shall, unless prohibited by law, be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee.

Basic Indemnification Agreement. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as soon as practicable but in any event no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes penalties and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes penalties or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following a Change in Control Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. If so requested by Indemnitee, the Company shall advance (within two business days of such request) any and all Expenses to Indemnitee (an “Expense Advance”). (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until the final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the state of domicile or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.

Basic Indemnification Agreement. (i) In the event the Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify the Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted not prohibited by applicable law, as soon as practicable but in any event no event later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes penalties and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes penalties or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following prior to a Change in Control the Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by the Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. If so requested by the Indemnitee, the Company shall advance to the Indemnitee (within twenty (20) days of such request) any and all Expenses (an “Expense Advance”). (ii) Notwithstanding the foregoing, (a) the obligations of the Company under Section 2(B)(i) shall be subject to the condition that any Reviewing Party shall not have determined (in a written opinion, in any case in which the Special Independent Counsel referred to in Section 2(C) below is involved) that the Indemnitee would not be permitted to be indemnified under applicable law, and (b) the obligation of the Company to make an Expense Advance pursuant to Section 2(B)(i) shall be subject to the condition that if, when and to the extent that any Reviewing Party determines that the Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by the Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if the Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that the Indemnitee should be indemnified under applicable law, any determination made by a Reviewing Party that the Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and the Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, a Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, a Reviewing Party shall be the Special Independent Counsel referred to in Section 2(C) below. If there has been no appointment or no determination by a Reviewing Party or if a Reviewing Party determines that the Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, the Indemnitee shall have the right to commence litigation in any court in the Commonwealth of Virginia having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual basis therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and the Indemnitee.

Basic Indemnification Agreement. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising airing in part party out of) ), an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as soon as practicable but in any event no event later than thirty days after written demand is presented to the Company, Company against any and all Expensesexpenses, judgments, fines, penalties, excise taxes and amounts paid or to be paid in settlement (including all interest, assessments assessments, and other charges paid or payable in connection with or in respect of such Expensesexpenses, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following prior to a Change in Control Control, Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. If so requested by Indemnitee, the Company shall advance (within two business days of such request) any and all Expenses to Indemnitee (an “Expense Advance”). (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 3(a) shall be subject to the condition that any Reviewing Party shall not have determined in a written opinion (in any case in which the Special Independent Counsel referred to in Section 4 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 3(a) shall be subject to the condition that if, when and to the extent that any Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company, without interest) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by a Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law 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 (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, a Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, a Reviewing Party shall be the Special Independent Counsel referred to in Section 4 hereof. If there has been no appointment or no determination by a Reviewing Party or if a Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Minnesota having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual basis therefor, and the Company hereby (i) consents to service of process and to appear in any such proceeding, (ii) shall be precluded from asserting that the procedures and presumptions of this Agreement are not valid, binding, and enforceable, and (iii) shall stipulate in any such proceeding that the Company is bound by all the provisions of this Agreement. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.

Basic Indemnification Agreement. In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, as soon as practicable but in no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s 's obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s 's active and deliberate dishonesty to the Company, or of Indemnitee's actual improper receipt of a personal benefit or profit or profit, in which case the Company shall be relieved of Indemnitee’s active and deliberate dishonesty its obligation to indemnify Indemnitee only to the Companyextent of the actual value of the benefit or profit received. The Company shall indemnify Indemnitee’s 's spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s 's or child’s 's own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“"Board Action”")) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) Bylaws or this Agreement to the contrary, following a Change in Control Control, Indemnitee shall, unless prohibited by law, be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee.

Basic Indemnification Agreement. In the event (a) If Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim (as defined in Section 12(b) herein) by reason of (or arising in part out of) an Indemnifiable EventEvent (as defined in Section 12(d) herein), the Company shall will indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, including but not limited to criminal action or proceedings where the Indemnitee had no reasonable cause to believe his/her conduct was unlawful, as soon as practicable but in any event no event later than thirty 30 days after written demand is presented to the Company, from and against any and all ExpensesExpenses (as defined in Section 12(c) herein), judgments, fines, penalties, excise taxes penalties and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlementtherewith) of the Claim actually and reasonably incurred by or on behalf of Indemnitee in connection with such Claimthe Claim and any federal, providedstate, howeverlocal or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement. If requested by Indemnitee in writing, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in will advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court (within ten business days of appropriate jurisdiction, or an independent legal counsel chosen written request) any and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable Expenses to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board ActionExpense Advance”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following and except as provided in Section 3, prior to a Change of Control (as defined in Control Section 12 herein) and except as set forth in Sections 1 (b) and 9, Indemnitee shall, unless prohibited by law, be is not entitled to indemnification pursuant to this Agreement in connection with any Claim (i) initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of the Claim; (ii) made on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Company or its stockholders or which involves intentional misconduct or a knowing violation of the law, pursuant to a final judgment without appeal; or (iii) pursuant to a final judgment rendered against Indemnitee for profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

Basic Indemnification Agreement. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) to the fullest extent permitted by applicable law, law as soon as practicable but in any event no event later than thirty days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties, excise taxes penalties and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties, excise taxes penalties or amounts paid or to be paid in settlement) of such Claim and any federal, state, local or in connection with such Claim, provided, however, that foreign taxes imposed on the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, as a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s the actual improper or deemed receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified any payments under this Agreement (which request need not be made prior to including the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote creation of the full Board of Directors (“Board Action”trust referred to in Section 4 hereof)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrarycontrary and except as provided in Section 6, following prior to a Change in Control Control, Indemnitee shall, unless prohibited by law, shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(c) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee shall not be permitted to be indemnified under applicable law 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 (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board, and if there has been such a Change in Control, (other than a Change in Control which has been approved by a majority of the Board who were directors immediately prior to such Change in Control) the Reviewing Party shall be the Independent Legal Counsel referred to in Section 3 hereof. If there has been no appointment or no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, or the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee. (c) The Company, within two business days of a request by Indemnitee, shall make Expense Advances for reasonable Expenses to Indemnitee. The parties agree that for the purposes hereof all Expenses included in an Expense Advance request that are certified by affidavit of Indemnitee's counsel as being reasonable shall be presumed conclusively to be reasonable. Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon.

Basic Indemnification Agreement. (a) In the event Indemnitee Director was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim (as hereinafter defined) by reason of (or arising in part out of) an Indemnifiable EventEvent (as hereinafter defined), the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) Director to the fullest extent permitted by applicable law, law as soon as practicable but in any event no event later than thirty 30 days after written demand is presented to the Company, against any and all ExpensesExpenses (as hereinafter defined), judgmentsjudgment, fines, penalties, excise taxes penalties and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such ExpensesClaim. If so requested by Director, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status within ten business days of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property written request) any and all Expenses to Director (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expensesan "Expense Advance"), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board Action”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following and except as provided in Section 3, prior to a Change in Control Indemnitee shall, unless prohibited by law, (as hereinafter defined) Director shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by IndemniteeDirector against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 1(a) shall be subject to the condition that the Reviewing Party (as hereinafter defined) shall not have determined (in a written opinion, in any case in which the special independent counsel referred to in Section 2 is involved) that Director would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 1(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Director would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Director (who hereby agrees to reimburse the

Basic Indemnification Agreement. (a) In the event Indemnitee Director was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim (as hereinafter defined) by reason of (or arising in part out of) an Indemnifiable EventEvent (as hereinafter defined), the Company shall indemnify Indemnitee (without regard to the negligence or other fault of the Indemnitee) Director to the fullest extent permitted by applicable law, law as soon as practicable but in any event no event later than thirty 30 days after written demand is presented to the Company, against any and all ExpensesExpenses (as hereinafter defined), judgmentsjudgment, fines, penalties, excise taxes penalties and amounts paid or to be paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such ExpensesClaim. If so requested by Director, judgments, fines, penalties, excise taxes or amounts paid or to be paid in settlement) of or in connection with such Claim, provided, however, that the Company shall not be required to indemnify Indemnitee for amounts paid or to be paid in settlement unless such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, or subsequently deemed reasonable by the Company, a court of appropriate jurisdiction, or an independent legal counsel chosen and approved by both the Company and Indemnitee. The Company’s obligation to indemnify Indemnitee under this paragraph shall be deemed mandatory in all cases without regard to the fault or negligence of Indemnitee unless it is determined, by final adjudication, that the liability imposed upon Indemnitee was the result of Indemnitee’s actual improper receipt of a personal benefit or profit or of Indemnitee’s active and deliberate dishonesty to the Company. The Company shall indemnify Indemnitee’s spouse (whether by statute or at common law and without regard to the location of the governing jurisdiction) and children to the same extent and subject to the same limitations applicable to Indemnitee hereunder for claims arising out of the status within ten business days of such person as a spouse or child of Indemnitee, including claims seeking damages from marital property written request) any and all Expenses to Director (including community property) or property held by such Indemnitee and such spouse or child or property transferred to such spouse or child but such indemnity shall not otherwise extend to protect the spouse or child against liabilities caused by the spouse’s or child’s own acts. If Indemnitee makes a request to be indemnified under this Agreement (which request need not be made prior to the incurrence of any Indemnifiable Expenses), the Board of Directors (acting by majority vote of a quorum consisting of directors who are not parties to the Claim with respect to the Indemnifiable Event or by majority vote of a committee of two or more directors who are duly designated to act on the matter by the full Board, or, if such a quorum is not obtainable and no such committee has been designated, acting upon an opinion in writing of special independent legal counsel selected by majority vote of the full Board of Directors (“Board ActionExpense Advance”)) shall, as soon as practicable but in no event later than thirty days after such request, authorize such indemnification. Notwithstanding anything in the Company’s Restated Articles of Incorporation, as amended from time to time, (the “Articles”), the Company’s Bylaws, as amended from time to time, (the “Bylaws”) or this Agreement to the contrary, following and except as provided in Section 3, prior to a Change in Control Indemnitee shall, unless prohibited by law, (as hereinafter defined) Director shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by IndemniteeDirector against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim. (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 1(a) shall be subject to the condition that the Reviewing Party (as hereinafter defined) shall not have determined (in a written opinion, in any case in which the special independent counsel referred to in Section 2 is involved) that Director would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 1(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Director would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Director (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Director has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Director should be indemnified under applicable law, any determination made by the Reviewing Party that Director would not be permitted to be indemnified under applicable law shall not be binding and Director shall not be required to reimburse the Company for any Expense Advance until a final judicial determination that Director shall reimburse the Company for any Expense Advance is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, the Reviewing Party shall be the special independent counsel referred to in Section 2. The Board of Directors will appoint the Reviewing Party no later than 10 days after receipt of a demand for indemnification (including, without limitation, a demand for Expense Advance). The Reviewing Party shall make his determination no later than 20 days after his appointment. If after 30 days there has been no determination by the Reviewing Party or if the Reviewing Party determines that Director substantively would not be permitted to be indemnified in whole or in part under applicable law, Director shall have the right to commence litigation in any court in the states of New York or Maryland having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party of any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Director.