ONLY ON THE GROUND THAT THE INDEPENDENT COUNSEL SO SELECTED DOES NOT
MEET THE REQUIREMENTS OF THE DEFINITION OF "INDEPENDENT COUNSEL" IN ARTICLE 1
HEREOF, AND THE OBJECTION SHALL SET FORTH WITH PARTICULARITY THE FACTUAL BASIS
OF SUCH ASSERTION.
IF SUCH WRITTEN OBJECTION IS TIMELY 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.
IN THE EVENT OF A
TIMELY WRITTEN OBJECTION TO A CHOICE OF INDEPENDENT COUNSEL, THE PARTY
ORIGINALLY SELECTING THE INDEPENDENT COUNSEL SHALL HAVE SEVEN DAYS TO MAKE AN
ALTERNATE SELECTION OF INDEPENDENT COUNSEL AND TO GIVE WRITTEN NOTICE OF SUCH
SELECTION TO THE OTHER PARTY, AFTER WHICH TIME SUCH OTHER PARTY SHALL HAVE FIVE
DAYS TO MAKE A WRITTEN OBJECTION TO SUCH ALTERNATE SELECTION.
IF, WITHOUT 30
DAYS AFTER SUBMISSION BY INDEMNITEE OF A WRITTEN REQUEST FOR INDEMNIFICATION
PURSUANT TO SECTION 5.1 HEREOF, NO INDEPENDENT COUNSEL SHALL HAVE BEEN SELECTED
AND NOT OBJECTED TO, EITHER THE CORPORATION OR INDEMNITEE MAY PETITION A COURT
FOR RESOLUTION OF ANY OBJECTION THAT SHALL HAVE BEEN MADE BY THE CORPORATION 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
AN OBJECTION IS SO RESOLVED OR THE PERSON SO APPOINTED SHALL ACT AS INDEPENDENT
COUNSEL UNDER SECTION 5.2 HEREOF.
THE CORPORATION SHALL PAY ANY AND ALL
REASONABLE FEES AND EXPENSES OF INDEPENDENT COUNSEL INCURRED BY SUCH INDEPENDENT
COUNSEL IN CONNECTION WITH ACTING PURSUANT TO SECTION 5.2, AND THE CORPORATION
SHALL PAY ALL REASONABLE FEES AND EXPENSES INCIDENT TO THE PROCEDURES OF THIS
SECTION 5.3, REGARDLESS OF THE MANNER IN WHICH SUCH INDEPENDENT COUNSEL WAS
SELECTED OR APPOINTED.
UPON THE DUE COMMENCEMENT OF ANY JUDICIAL PROCEEDING OR
ARBITRATION PURSUANT TO SECTION 6.1(C) OF THIS AGREEMENT, INDEPENDENT COUNSEL
SHALL BE DISCHARGED AND
7
relieved of any further responsibility in such capacity (subject to the
applicable standards of professional conduct then prevailing).
SECTION 5.4
PRESUMPTIONS AND EFFECT OF
CERTAIN PROCEEDINGS.
(A)
IF A CHANGE IN CONTROL SHALL HAVE OCCURRED,
INDEMNITEE SHALL BE PRESUMED (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT) TO BE ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT UPON
SUBMISSION OF A REQUEST FOR INDEMNIFICATION UNDER SECTION 5.1, AND THEREAFTER
THE CORPORATION SHALL HAVE THE BURDEN OF PROOF IN OVERCOMING THAT PRESUMPTION IN
REACHING A DETERMINATION CONTRARY TO THAT PRESUMPTION.
THE PRESUMPTION SHALL BE
USED BY INDEPENDENT COUNSEL (OR OTHER PERSON OR PERSONS DETERMINING ENTITLEMENT
TO INDEMNIFICATION) AS A BASIS FOR A DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION UNLESS THE CORPORATION PROVIDES INFORMATION SUFFICIENT TO
OVERCOME SUCH PRESUMPTION BY CLEAR AND CONVINCING EVIDENCE OR THE INVESTIGATION,
REVIEW AND ANALYSIS OF INDEPENDENT COUNSEL (OR SUCH OTHER PERSON OR PERSONS)
CONVINCES HIM OR THEM BY CLEAR AND CONVINCING EVIDENCE THAT THE PRESUMPTION
SHOULD NOT APPLY.
(B)
IF THE PERSON OR PERSONS EMPOWERED OR
SELECTED UNDER ARTICLE 5 OF