REQUIREMENTS
OF "INDEPENDENT COUNSEL" AS DEFINED IN SECTION 1, AND THE OBJECTION SHALL SET
FORTH WITH PARTICULARITY THE FACTUAL BASIS OF SUCH ASSERTION.
ABSENT A PROPER
AND TIMELY OBJECTION, THE PERSON SO SELECTED SHALL ACT AS INDEPENDENT COUNSEL.
IF A WRITTEN OBJECTION IS MADE, THE INDEPENDENT COUNSEL SO SELECTED MAY NOT
SERVE AS INDEPENDENT COUNSEL UNLESS AND UNTIL A COURT HAS DETERMINED THAT SUCH
OBJECTION IS WITHOUT MERIT.
IF, WITHIN 20 DAYS AFTER SUBMISSION BY THE
INDEMNITEE OF A WRITTEN REQUEST FOR INDEMNIFICATION, NO INDEPENDENT COUNSEL
SHALL HAVE BEEN SELECTED OR IF SELECTED, SHALL HAVE BEEN OBJECTED TO, IN
ACCORDANCE WITH THIS PARAGRAPH EITHER THE CORPORATION OR THE INDEMNITEE MAY
PETITION THE COURT OF CHANCERY OF THE STATE OF DELAWARE OR OTHER COURT OF
COMPETENT JURISDICTION FOR RESOLUTION OF ANY OBJECTION WHICH SHALL HAVE BEEN
MADE BY THE CORPORATION OR THE INDEMNITEE TO THE OTHER'S SELECTION OF
INDEPENDENT COUNSEL AND/OR FOR THE APPOINTMENT AS INDEPENDENT COUNSEL OF A
PERSON SELECTED BY THE COURT OR BY SUCH OTHER PERSON AS THE COURT SHALL
DESIGNATE, AND THE PERSON WITH RESPECT TO WHOM AN OBJECTION IS FAVORABLY
RESOLVED OR THE PERSON SO APPOINTED SHALL ACT AS INDEPENDENT COUNSEL.
THE
CORPORATION SHALL PAY THE REASONABLE EXPENSES OF INDEPENDENT COUNSEL INCURRED IN
CONNECTION WITH ITS ACTING IN SUCH CAPACITY.
THE CORPORATION SHALL PAY ANY AND
ALL REASONABLE AND NECESSARY EXPENSES INCIDENT TO THE PROCEDURES OF THIS
PARAGRAPH, REGARDLESS OF THE MANNER IN WHICH SUCH INDEPENDENT COUNSEL WAS
SELECTED OR APPOINTED.
(D)
THE TERMINATION OF ANY PROCEEDING BY JUDGMENT, ORDER, SETTLEMENT,
CONVICTION OR UPON A PLEA OF NOLO CONTENDERE OR ITS EQUIVALENT, SHALL NOT, OF
ITSELF, CREATE A PRESUMPTION THAT THE INDEMNITEE DID NOT ACT IN GOOD FAITH AND
IN A MANNER THAT THE INDEMNITEE REASONABLY BELIEVED TO BE IN, OR NOT OPPOSED TO,
THE BEST INTERESTS OF THE CORPORATION, AND, WITH RESPECT TO ANY CRIMINAL
PROCEEDING, HAD REASONABLE CAUSE TO BELIEVE THAT HIS OR HER CONDUCT WAS
UNLAWFUL.
(E)
INDEMNITEE SHALL BE DEEMED TO HAVE ACTED IN GOOD FAITH IF
INDEMNITEE'S ACTION IS BASED ON THE RECORDS OR BOOKS OF ACCOUNT OF THE
CORPORATION OR ITS AFFILIATES, INCLUDING FINANCIAL STATEMENTS, OR ON INFORMATION
SUPPLIED TO INDEMNITEE BY THE OFFICERS OF THE CORPORATION OR ITS AFFILIATES IN
THE COURSE OF THEIR DUTIES, OR ON THE ADVICE OF LEGAL COUNSEL FOR THE
CORPORATION OR ITS AFFILIATES OR ON INFORMATION OR RECORDS GIVEN OR REPORTS MADE
TO THE CORPORATION OR ITS AFFILIATES BY AN INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANT OR BY AN APPRAISER OR OTHER EXPERT SELECTED WITH THE REASONABLE CARE
BY THE CORPORATION OR ITS AFFILIATES.
THE PROVISIONS OF THIS SECTION 8(E) SHALL
NOT BE DEEMED TO BE EXCLUSIVE OR TO LIMIT IN ANY WAY THE OTHER CIRCUMSTANCES IN
WHICH THE INDEMNITEE MAY BE DEEMED TO HAVE MET THE APPLICABLE STANDARD OF
CONDUCT SET FORTH IN THIS AGREEMENT.
7
(F)
THE KNOWLEDGE AND/OR ACTIONS, OR FAILURE TO ACT, OF ANY DIRECTOR,
OFFICER, AGENT OR EMPLOYEE OF THE CORPORATION OR ITS AFFILIATES SHALL NOT BE
IMPUTED TO INDEMNITEE