THE BOARD OF DIRECTORS OF THE
COMPANY, A COPY OF WHICH SHALL BE DELIVERED TO INDEMNITEE; SHALL BE OBTAINED BY
THE COMPANY AT ITS EXPENSE; AND, IF IT IS SO DETERMINED THAT INDEMNITEE IS
ENTITLED TO INDEMNIFICATION, PAYMENT TO INDEMNITEE SHALL BE MADE WITHIN 10 DAYS
AFTER SUCH DETERMINATION.
ANY COSTS OR EXPENSES (INCLUDING ATTORNEYS' FEES AND
DISBURSEMENTS) INCURRED BY INDEMNITEE IN COOPERATING WITH THE PERSON, PERSONS OR
ENTITY MAKING THE DETERMINATION DISCUSSED IN THIS SECTION 7(B) WITH RESPECT TO
INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION, SHALL BE BORNE BY THE COMPANY
(IRRESPECTIVE OF THE DETERMINATION AS TO INDEMNITEE'S ENTITLEMENT TO
INDEMNIFICATION) AND THE COMPANY HEREBY INDEMNIFIES AND AGREES TO HOLD
INDEMNITEE HARMLESS THEREFROM.
(C)
THE INDEPENDENT COUNSEL SHALL BE SELECTED
BY INDEMNITEE AND INDEMNITEE SHALL GIVE WRITTEN NOTICE TO THE COMPANY ADVISING
IT OF THE IDENTITY OF THE INDEPENDENT COUNSEL SO SELECTED.
THE COMPANY MAY,
WITHIN 10 DAYS AFTER SUCH WRITTEN NOTICE OF SELECTION SHALL HAVE BEEN GIVEN,
DELIVER TO THE INDEMNITEE 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 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
4
SUBSTANTIATED, THE INDEPENDENT COUNSEL SO SELECTED MAY NOT SERVE AS INDEPENDENT
COUNSEL UNLESS AND UNTIL SUCH OBJECTION IS WITHDRAWN OR A COURT HAS DETERMINED
THAT SUCH OBJECTION IS WITHOUT MERIT.
IF, WITHIN 20 DAYS AFTER SUBMISSION BY
INDEMNITEE OF A WRITTEN REQUEST FOR INDEMNIFICATION PURSUANT TO
SECTION 7(B) HEREOF, NO INDEPENDENT COUNSEL SHALL HAVE BEEN SELECTED AND NOT
OBJECTED TO, EITHER THE COMPANY OR INDEMNITEE MAY PETITION THE DELAWARE COURT OF
CHANCERY OR OTHER COURT OF COMPETENT JURISDICTION 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 COURT OR BY SUCH OTHER PERSON AS THE COURT
SHALL DESIGNATE, AND THE PERSON WITH RESPECT TO WHOM ALL OBJECTIONS ARE SO
RESOLVED OR THE PERSON SO APPOINTED SHALL ACT AS INDEPENDENT COUNSEL UNDER
SECTION 7(A) HEREOF.
(D)
INDEMNITEE WILL BE DEEMED A PARTY TO A
PROCEEDING FOR ALL PURPOSES HEREOF IF INDEMNITEE IS NAMED AS A DEFENDANT OR
RESPONDENT IN A COMPLAINT OR PETITION FOR RELIEF IN THAT PROCEEDING, REGARDLESS
OF WHETHER INDEMNITEE IS EVER SERVED WITH PROCESS OR MAKES AN APPEARANCE IN THAT
PROCEEDING.
8.
PRESUMPTIONS AND EFFECT OF CERTAIN
PROVISIONS.
(A)
IN MAKING A DETERMINATION WITH RESPECT TO
ENTITLEMENT TO INDEMNIFICATION HEREUNDER, THE PERSON OR PERSONS OR ENTITY MAKING
SUCH DETERMINATION SHALL PRESUME THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION
UNDER THIS AGREEMENT IF INDEMNITEE HAS SUBMITTED A REQUEST FOR INDEMNIFICATION
IN ACCORDANCE WITH SECTION 7(A) OF THIS AGREEMENT, AND THE COMPANY SHALL HAVE
THE BURDEN OF PROOF