Common use of Advance Payment of Expenses; Notification and Defense of Claim Clause in Contracts

Advance Payment of Expenses; Notification and Defense of Claim. (i) Expenses (including attorneys’ fees) incurred by the Covered Person in defending a threatened or pending civil, criminal, administrative or investigative action, suit or proceeding, or in connection with an enforcement action pursuant to Section 18(e)(ii), shall be paid by the Company in advance of the final disposition of such action, suit or proceeding within thirty (30) days after receipt by the Company of (x) a statement or statements from the Covered Person requesting such advance or advances from time to time, with a copy of the xxxx for the related expenses, and (y) an undertaking by or on behalf of the Covered Person to repay all such amounts advanced, only if, and to the extent that, it should ultimately be determined that the Covered Person is not entitled to be indemnified by the Company as authorized by this Agreement or otherwise. Such undertaking shall be accepted without reference to the financial ability of the Covered Person to make such repayment. Advances shall be unsecured and interest-free. (ii) If the Company shall be obligated to pay the expenses of the Covered Person with respect to an action, suit or proceeding, as provided in this Section 18, the Company, if appropriate, may assume the defense of such action, suit or proceeding, with counsel reasonably acceptable to the Covered Person. After approval of such counsel by the Covered Person and the retention of such counsel by the Company, the Company will not be liable to the Covered Person under this Section 18 for any fees of counsel subsequently incurred by the Covered Person with respect to the same action, suit or proceeding, provided that the Covered Person shall have the ability to employ the Covered Person’s own counsel in such action, suit or proceeding (x) at the Covered Person’s expense upon the prior written consent of the Company, or (y) if (1) counsel to the Company or the Covered Person shall have reasonably concluded that there may be a conflict of interest or position, or reasonably believes that a conflict is likely to arise, on any significant issue between the Company and the Covered Person in the conduct of any such defense or (2) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding, in which case the fees and expenses of the Covered Person’s counsel shall be at the expense of the Company, except as otherwise expressly provided by this Section 18. The Company shall not be entitled, without the consent of the Covered Person, to assume the defense of any claim brought by or in the right of the Company or as to which counsel for the Company or the Covered Person shall have reasonably made the conclusion provided for in clause (1) above. (iii) Notwithstanding any other provision of this Agreement to the contrary, to the extent that the Covered Person is, by reason of the Covered Person’s service as a Director, Officer or employee of the Company, a witness or otherwise participates in any action, suit or proceeding at a time when the Covered Person is not a party in the action, suit or proceeding, the Company shall pay or cause to be paid on behalf of the Covered Person against, or shall otherwise cause to be paid, all expenses (including attorneys’ fees) actually and reasonably incurred by the Covered Person or on the Covered Person’s behalf in connection therewith.

Advance Payment of Expenses; Notification and Defense of Claim. (i) i. Expenses (including attorneys’ fees) incurred by the Covered Person in defending a threatened or pending civil, criminal, administrative or investigative action, suit or proceeding, or in connection with an enforcement action pursuant to Section 18(e)(ii), shall be paid by the Company in advance of the final disposition of such action, suit or proceeding within thirty (30) days after receipt by the Company of (x) a statement or statements from the Covered Person requesting such advance or advances from time to time, with a copy of the xxxx for the related expenses, and (y) an undertaking by or on behalf of the Covered Person to repay all such amounts advanced, only if, and to the extent that, it should ultimately be determined that the Covered Person is not entitled to be indemnified by the Company as authorized by this Agreement or otherwise. Such undertaking shall be accepted without reference to the financial ability of the Covered Person to make such repayment. Advances shall be unsecured and interest-free. (ii) . If the Company shall be obligated to pay the expenses of the Covered Person with respect to an action, suit or proceeding, as provided in this Section 18, the Company, if appropriate, may assume the defense of such action, suit or proceeding, with counsel reasonably acceptable to the Covered Person. After approval of such counsel by the Covered Person and the retention of such counsel by the Company, the Company will not be liable to the Covered Person under this Section 18 for any fees of counsel subsequently incurred by the Covered Person with respect to the same action, suit or proceeding, provided that the Covered Person shall have the ability to employ the Covered Person’s own counsel in such action, suit or proceeding (x) at the Covered Person’s expense upon the prior written consent of the Company, or (y) if (1) counsel to the Company or the Covered Person shall have reasonably concluded that there may be a conflict of interest or position, or reasonably believes that a conflict is likely to arise, on any significant issue between the Company and the Covered Person in the conduct of any such defense or (2) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding, in which case the fees and expenses of the Covered Person’s counsel shall be at the expense of the Company, except as otherwise expressly provided by this Section 18. The Company shall not be entitled, without the consent of the Covered Person, to assume the defense of any claim brought by or in the right of the Company or as to which counsel for the Company or the Covered Person shall have reasonably made the conclusion provided for in clause (1) above. (iii) . Notwithstanding any other provision of this Agreement to the contrary, to the extent that the Covered Person is, by reason of the Covered Person’s service as a Director, Officer or employee of the Company, a witness or otherwise participates in any action, suit or proceeding at a time when the Covered Person is not a party in the action, suit or proceeding, the Company shall pay or cause to be paid on behalf of the Covered Person against, or shall otherwise cause to be paid, all expenses (including attorneys’ fees) actually and reasonably incurred by the Covered Person or on the Covered Person’s behalf in connection therewith.