WITH
RESPECT TO INDEMNITEE'S ENTITLEMENT TO INDEMNIFICATION, INCLUDING PROVIDING TO
SUCH PERSON, PERSONS OR ENTITY UPON REASONABLE ADVANCE REQUEST ANY 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
8
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] [HER] 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 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 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WITHDRAWN OR A COURT HAS DETERMINED THAT SUCH OBJECTION IS WITHOUT MERIT.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 TWENTY (20) DAYS AFTER THE LATER OF SUBMISSION BY INDEMNITEE OF A WRITTEN
REQUEST FOR INDEMNIFICATION PURSUANT TO SECTION 10(A) HEREOF AND THE FINAL
DISPOSITION OF THE PROCEEDING, 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 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