THE
DETERMINATION WITH RESPECT TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION,
INCLUDING PROVIDING TO SUCH PERSON UPON REASONABLE ADVANCE REQUEST ANY
DOCUMENTATION OR INFORMATION THAT IS NOT PRIVILEGED OR OTHERWISE
5
PROTECTED FROM DISCLOSURE AND THAT IS REASONABLY AVAILABLE TO INDEMNITEE AND
REASONABLY NECESSARY TO SUCH DETERMINATION.
ANY EXPENSES ACTUALLY AND
REASONABLY INCURRED BY INDEMNITEE IN SO COOPERATING WITH THE PERSON MAKING SUCH
DETERMINATION WILL BE BORNE BY THE COMPANY (IRRESPECTIVE OF THE DETERMINATION AS
TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION) AND THE COMPANY HEREBY
INDEMNIFIES, DEFENDS, AND AGREES TO HOLD INDEMNITEE HARMLESS FROM ANY SUCH COSTS
AND EXPENSES.
IF IT IS DETERMINED THAT INDEMNITEE IS ENTITLED TO
INDEMNIFICATION REQUESTED BY INDEMNITEE IN A WRITTEN APPLICATION SUBMITTED TO
THE COMPANY PURSUANT TO SECTION 6, PAYMENT TO INDEMNITEE WILL BE MADE WITHIN 15
DAYS AFTER SUCH DETERMINATION.
(C)
IN THE EVENT THE DETERMINATION OF
ENTITLEMENT TO INDEMNIFICATION IS TO BE MADE BY INDEPENDENT COUNSEL PURSUANT TO
SECTION 6(B), THE INDEPENDENT COUNSEL WILL BE SELECTED AS PROVIDED IN THIS
SECTION 6(C).
IF A CHANGE IN CONTROL HAS NOT OCCURRED, THE INDEPENDENT COUNSEL
WILL BE SELECTED BY THE BOARD, AND THE COMPANY WILL GIVE WRITTEN NOTICE TO
INDEMNITEE ADVISING HIM OR HER OF THE IDENTITY OF THE INDEPENDENT COUNSEL SO
SELECTED.
IF A CHANGE IN CONTROL HAS OCCURRED, THE INDEPENDENT COUNSEL WILL BE
SELECTED BY INDEMNITEE (UNLESS INDEMNITEE REQUESTS THAT SUCH SELECTION BE MADE
BY THE BOARD, IN WHICH EVENT THE PRECEDING SENTENCE WILL APPLY), AND INDEMNITEE
WILL GIVE WRITTEN NOTICE TO THE 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 DAYS AFTER SUCH WRITTEN NOTICE OF SELECTION HAS
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 THIS AGREEMENT, AND
THE OBJECTION WILL SET FORTH WITH PARTICULARITY THE FACTUAL BASIS OF SUCH
ASSERTION.
ABSENT A PROPER AND TIMELY OBJECTION, THE PERSON SO SELECTED WILL
ACT AS INDEPENDENT COUNSEL.
IF A WRITTEN OBJECTION IS 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AND UNTIL SUCH OBJECTION IS WITHDRAWN OR A COURT OF COMPETENT JURISDICTION HAS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.
THE COMPANY AGREES TO PAY THE
REASONABLE FEES AND EXPENSES OF THE INDEPENDENT COUNSEL AND TO FULLY INDEMNIFY
SUCH INDEPENDENT COUNSEL AGAINST ANY AND ALL EXPENSES, CLAIMS, LIABILITIES, AND
DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS ENGAGEMENT PURSUANT
TO THIS AGREEMENT.
(D)
IN MAKING A DETERMINATION WITH RESPECT TO
ENTITLEMENT TO INDEMNIFICATION UNDER THIS AGREEMENT, THE PERSON MAKING SUCH
DETERMINATION WILL PRESUME THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION UNDER
THIS AGREEMENT.
ANYONE SEEKING TO OVERCOME THIS PRESUMPTION WILL HAVE THE
BURDEN OF PROOF AND THE BURDEN OF PERSUASION BY CLEAR AND CONVINCING EVIDENCE.