COMPANY ADVISING IT OF THE IDENTITY OF THE INDEPENDENT COUNSEL SO SELECTED.
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 GIVEN, 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 1 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COUNSEL UNLESS AND UNTIL SUCH OBJECTION IS WITHDRAWN OR A COURT HAS DETERMINED
THAT SUCH OBJECTION IS WITHOUT MERIT.
IF, WITHIN TWENTY (20) DAYS AFTER THE
LATER OF (I) SUBMISSION BY INDEMNITEE OF A WRITTEN REQUEST FOR INDEMNIFICATION
PURSUANT TO SECTION 10(A) HEREOF AND (II) THE FINAL DISPOSITION OF THE
PROCEEDING, THE PARTIES HAVE NOT AGREED UPON AN INDEPENDENT COUNSEL, EITHER THE
COMPANY OR INDEMNITEE MAY PETITION A 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 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 10(B) HEREOF.
UPON THE DUE COMMENCEMENT OF
ANY JUDICIAL PROCEEDING OR ARBITRATION PURSUANT TO SECTION 12(A) OF THIS
AGREEMENT, THE INDEPENDENT COUNSEL SHALL BE
7
DISCHARGED AND RELIEVED OF ANY FURTHER RESPONSIBILITY IN SUCH CAPACITY (SUBJECT
TO THE APPLICABLE STANDARDS OF PROFESSIONAL CONDUCT THEN PREVAILING).
(D)
THE COMPANY AGREES TO PAY THE REASONABLE FEES AND EXPENSES OF ANY
INDEPENDENT COUNSEL AND TO FULLY INDEMNIFY SUCH COUNSEL AGAINST ANY AND ALL
EXPENSES, CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ITS ENGAGEMENT PURSUANT HERETO.
11.
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 10(A) 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 SUCH PERSON, PERSONS OR ENTITY OF ANY DETERMINATION CONTRARY TO THAT
PRESUMPTION.
(B)
THE TERMINATION OF ANY PROCEEDING OR OF ANY CLAIM, ISSUE, OR
MATTER THEREIN, BY JUDGMENT, ORDER, SETTLEMENT OR CONVICTION, OR UPON A PLEA OF
NOLO CONTENDERE OR ITS