Common use of Selection, Payment, Discharge, of Independent Counsel Clause in Contracts

Selection, Payment, Discharge, of Independent Counsel. In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected, paid, and discharged in the following manner: (1) if a Change of Control has not occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected, or (2) if a Change of Control has occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event clause (1) of this Section 6(c) shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. Following the initial selection of Independent Counsel described in clauses (1) and (2) of this Section 6(c), Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection has been given, deliver to the other party a written objection to such selection. 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 13 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 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the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. Either the Company or Indemnitee may petition the Delaware Court (as defined in Section 20) if the parties have been unable to agree on the selection of Independent Counsel within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) of this Agreement. Such petition may request a determination whether an objection to the party’s selection of Independent Counsel is without merit and/or seek the appointment as Independent Counsel of a person selected by the Delaware Court or by such other person as the Delaware Court shall designate. A person so appointed shall act as Independent Counsel under this Section 6. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6 hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of Section 6(c) hereof, regardless of the manner in which such Independent Counsel was selected or appointed. If it is determined that Indemnitee is entitled to indemnification under this Section 6, payment shall be made within ten (10) days.

Selection, Payment, Discharge, of Independent Counsel. In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) of this Agreement, the Independent Counsel shall be selected, paid, and discharged in the following manner: (1) if a Change of Control has not occurred, the Independent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected, or (2) if a Change of Control has occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event clause (1) of this Section 6(c) shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. Following the initial selection of Independent Counsel described in clauses (1) and (2) of this Section 6(c), Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection has been given, deliver to the other party a written objection to such selection. 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 13 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 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. Either the Company or Indemnitee may petition the Delaware Court (as defined in Section 20) if the parties have been unable to agree on the selection of Independent Counsel within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) of this Agreement. Such petition may request a determination whether an objection to the party’s selection of Independent Counsel is without merit and/or seek the appointment as Independent Counsel of a person selected by the Delaware Court or by such other person as the Delaware Court shall designate. A person so appointed shall act as Independent Counsel under this Section 6. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6 hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of Section 6(c) hereof, regardless of the manner in which such Independent Counsel was selected or appointed. If it is determined that Indemnitee is entitled to indemnification under this Section 6, payment shall be made within ten (10) days.. TC \l3 "