TO INDEMNITEE ADVISING HIM OF THE IDENTITY OF THE
INDEPENDENT COUNSEL SO SELECTED AND CERTIFYING THAT THE INDEPENDENT COUNSEL SO
SELECTED MEETS THE REQUIREMENTS OF "INDEPENDENT COUNSEL" AS DEFINED IN SECTION 2
OF THIS AGREEMENT.
IN EITHER EVENT, INDEMNITEE OR THE COMPANY, AS THE CASE MAY
BE, MAY, WITHIN TEN (10) DAYS AFTER SUCH WRITTEN NOTICE OF SELECTION SHALL HAVE
BEEN RECEIVED, DELIVER TO THE COMPANY OR TO INDEMNITEE, AS THE CASE MAY BE, A
WRITTEN OBJECTION TO SUCH SELECTION; PROVIDED, HOWEVER, THAT SUCH OBJECTION MAY
BE ASSERTED ONLY ON THE GROUND THAT THE INDEPENDENT COUNSEL SO SELECTED DOES NOT
MEET THE REQUIREMENTS OF "INDEPENDENT COUNSEL" AS DEFINED IN SECTION 2 OF THIS
AGREEMENT, 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 SUCH WRITTEN OBJECTION IS SO MADE
AND SUBSTANTIATED, THE INDEPENDENT COUNSEL SO SELECTED MAY NOT SERVE AS
INDEPENDENT COUNSEL UNLESS AND UNTIL SUCH OBJECTION IS WITHDRAWN OR A COURT OF
COMPETENT JURISDICTION HAS DETERMINED THAT SUCH OBJECTION IS WITHOUT MERIT.
IF,
WITHIN TWENTY (20) DAYS AFTER SUBMISSION BY INDEMNITEE OF A WRITTEN REQUEST FOR
INDEMNIFICATION PURSUANT TO SECTION 11(A) HEREOF, NO INDEPENDENT COUNSEL SHALL
HAVE BEEN SELECTED AND NOT OBJECTED TO, EITHER THE COMPANY OR INDEMNITEE MAY
PETITION THE DELAWARE COURT FOR RESOLUTION OF ANY OBJECTION WHICH SHALL HAVE
BEEN MADE BY THE COMPANY OR INDEMNITEE TO THE OTHER'S SELECTION OF INDEPENDENT
COUNSEL AND/OR FOR THE APPOINTMENT AS INDEPENDENT COUNSEL OF A PERSON SELECTED
BY THE DELAWARE COURT, AND THE PERSON WITH RESPECT TO WHOM ALL OBJECTIONS ARE SO
RESOLVED OR THE PERSON SO APPOINTED SHALL ACT AS INDEPENDENT COUNSEL UNDER
SECTION 12(A) HEREOF.
UPON THE DUE COMMENCEMENT OF ANY JUDICIAL PROCEEDING OR
ARBITRATION PURSUANT TO SECTION 14(A) OF THIS AGREEMENT, INDEPENDENT COUNSEL
SHALL BE DISCHARGED AND RELIEVED OF ANY FURTHER RESPONSIBILITY IN SUCH CAPACITY
(SUBJECT TO THE APPLICABLE STANDARDS OF PROFESSIONAL CONDUCT THEN PREVAILING).
(C)
THE COMPANY AGREES TO PAY THE REASONABLE FEES AND EXPENSES OF INDEPENDENT
10
COUNSEL AND TO FULLY INDEMNIFY AND HOLD HARMLESS SUCH INDEPENDENT COUNSEL
AGAINST ANY AND ALL EXPENSES, CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ITS ENGAGEMENT PURSUANT HERETO.
13.
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(A)
IN MAKING A DETERMINATION WITH RESPECT TO ENTITLEMENT TO INDEMNIFICATION
HEREUNDER, THE PERSON, PERSONS OR ENTITY MAKING SUCH DETERMINATION SHALL, TO THE
FULLEST EXTENT NOT PROHIBITED BY LAW, PRESUME THAT INDEMNITEE IS ENTITLED TO
INDEMNIFICATION UNDER THIS AGREEMENT IF INDEMNITEE HAS SUBMITTED A REQUEST FOR
INDEMNIFICATION IN ACCORDANCE WITH SECTION 11(B) OF THIS AGREEMENT, AND THE
COMPANY SHALL , TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, HAVE THE BURDEN OF
PROOF TO OVERCOME THAT PRESUMPTION IN CONNECTION WITH THE MAKING BY ANY PERSON,
PERSONS OR ENTITY OF ANY DETERMINATION CONTRARY TO THAT PRESUMPTION.
NEITHER
THE FAILURE OF THE COMPANY (INCLUDING BY ITS DIRECTORS OR INDEPENDENT COUNSEL)
TO HAVE MADE A DETERMINATION PRIOR TO THE