STOCKHOLDERS OF THE COMPANY; AND, IF IT IS SO
DETERMINED THAT INDEMNITEE IS ENTITLED TO INDEMNIFICATION, PAYMENT TO INDEMNITEE
SHALL BE MADE WITHIN TEN (10) DAYS AFTER SUCH DETERMINATION.
INDEMNITEE SHALL
COOPERATE WITH THE PERSON, PERSONS OR ENTITY MAKING SUCH DETERMINATION WITH
RESPECT TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION, INCLUDING PROVIDING TO
SUCH PERSON, PERSONS OR ENTITY UPON REASONABLE ADVANCE REQUEST ANY
7
DOCUMENTATION OR INFORMATION WHICH IS NOT PRIVILEGED OR OTHERWISE PROTECTED FROM
DISCLOSURE AND WHICH IS REASONABLY AVAILABLE TO INDEMNITEE AND REASONABLY
NECESSARY TO SUCH DETERMINATION.
ANY COSTS OR EXPENSES (INCLUDING ATTORNEYS'
FEES AND DISBURSEMENTS) INCURRED BY INDEMNITEE IN SO COOPERATING WITH THE
PERSON, PERSONS OR ENTITY MAKING SUCH DETERMINATION 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.
(B)
IN THE EVENT THE DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
IS TO BE MADE BY INDEPENDENT COUNSEL PURSUANT TO SECTION 11(A) HEREOF, THE
INDEPENDENT COUNSEL SHALL BE SELECTED AS PROVIDED IN THIS SECTION 11(B).
IF A
CHANGE IN CONTROL SHALL NOT HAVE OCCURRED, THE INDEPENDENT COUNSEL SHALL BE
SELECTED BY THE BOARD OF DIRECTORS, AND THE COMPANY SHALL GIVE WRITTEN NOTICE TO
INDEMNITEE ADVISING HIM OF THE IDENTITY OF THE INDEPENDENT COUNSEL SO SELECTED.
IF A CHANGE IN CONTROL SHALL HAVE OCCURRED, THE INDEPENDENT COUNSEL SHALL BE
SELECTED BY INDEMNITEE (UNLESS INDEMNITEE SHALL REQUEST THAT SUCH SELECTION BE
MADE BY THE BOARD OF DIRECTORS, IN WHICH EVENT THE PRECEDING SENTENCE SHALL
APPLY), AND INDEMNITEE SHALL 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 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 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 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 10(A) HEREOF, NO INDEPENDENT COUNSEL SHALL
HAVE BEEN SELECTED AND NOT OBJECTED TO, 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/OR FOR THE APPOINTMENT AS INDEPENDENT COUNSEL OF A
PERSON SELECTED BY THE COURT OR BY SUCH OTHER PERSON