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IS WITHDRAWN OR A COURT HAS DETERMINED THAT SUCH OBJECTION IS WITHOUT MERIT.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, INCLUDING ANY APPEAL THEREIN, NO
INDEPENDENT COUNSEL SHALL HAVE BEEN SELECTED AND NOT OBJECTED TO, THE INDEMNITEE
MAY PETITION A COURT OF COMPETENT JURISDICTION FOR RESOLUTION OF ANY OBJECTION
WHICH SHALL HAVE BEEN MADE BY THE COMPANY TO THE 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 SECTION 11(A) HEREOF.
UPON THE
DUE COMMENCEMENT OF ANY JUDICIAL PROCEEDING OR ARBITRATION PURSUANT TO
SECTION 13(A) OF THIS AGREEMENT, INDEPENDENT COUNSEL SHALL BE DISCHARGED AND
RELIEVED OF ANY FURTHER RESPONSIBILITY IN SUCH CAPACITY (SUBJECT TO THE
APPLICABLE STANDARDS OF PROFESSIONAL CONDUCT THEN PREVAILING).
SECTION 12. PRESUMPTIONS; EFFECT OF CERTAIN PROCEEDINGS.
(A)
IN MAKING A DETERMINATION WITH RESPECT TO ENTITLEMENT TO
INDEMNIFICATION HEREUNDER, THE INDEPENDENT COUNSEL MAKING SUCH DETERMINATION
SHALL 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 HAVE THE
BURDEN OF PROOF TO OVERCOME THAT PRESUMPTION IN CONNECTION WITH THE MAKING BY
THE INDEPENDENT COUNSEL OF ANY DETERMINATION CONTRARY TO THAT PRESUMPTION.
NEITHER THE FAILURE OF THE COMPANY OR OF INDEPENDENT COUNSEL TO
HAVE MADE A DETERMINATION PRIOR TO THE COMMENCEMENT OF ANY ACTION PURSUANT TO
THIS AGREEMENT THAT INDEMNIFICATION IS PROPER IN THE CIRCUMSTANCES BECAUSE
INDEMNITEE HAS MET THE APPLICABLE STANDARD OF CONDUCT, NOR AN ACTUAL
DETERMINATION BY THE COMPANY OR BY INDEPENDENT COUNSEL THAT INDEMNITEE HAS NOT
MET SUCH APPLICABLE STANDARD OF CONDUCT, SHALL BE A DEFENSE TO THE ACTION OR
CREATE A PRESUMPTION THAT INDENMITEE HAS NOT MET THE APPLICABLE STANDARD OF
CONDUCT.
(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
GUILTY, NOLO CONTENDERE OR ITS EQUIVALENT, SHALL NOT (EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS AGREEMENT) OF ITSELF ADVERSELY AFFECT THE RIGHT OF
INDEMNITEE TO INDEMNIFICATION OR CREATE A PRESUMPTION THAT INDEMNITEE DID NOT
ACT IN GOOD FAITH AND IN A MANNER WHICH HE REASONABLY BELIEVED TO BE IN OR NOT
OPPOSED TO THE BEST INTERESTS OF THE COMPANY OR, WITH RESPECT TO ANY CRIMINAL
PROCEEDING, THAT INDEMNITEE HAD REASONABLE CAUSE TO BELIEVE THAT HIS CONDUCT WAS
UNLAWFUL.
(C)
FOR PURPOSES OF ANY DETERMINATION OF GOOD FAITH, INDEMNITEE
SHALL BE DEEMED TO HAVE ACTED IN GOOD FAITH IF INDEMNITEE'S