Common use of Assumption of Defense Clause in Contracts

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance pay the Expenses for of any Proceeding against Indemnitee, the Company, if deemed appropriate by the Companyappropriate, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense Proceeding, with counsel approved by Indemnitee (such approval not to be unreasonably withheld), upon the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related delivery to joint representations. Following delivery Indemnitee of written notice to Indemnitee of the Company’s election to assume the defense do so. After delivery of such Proceedingnotice, the approval of such counsel by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If proceeding, provided that (Aa) Indemnitee shall have the right to employ his or her counsel in such Proceeding at Indemnitee’s expense, and (b) if (i) the employment of counsel by Indemnitee has been previously authorized in writing by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (Ciii) the Company fails to employ shall not within 30 calendar days of receipt of notice from the Indemnitee, in fact, have employed counsel to assume the defense of such Proceeding, or (D) after a Change in Control, then the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject at the expense of the Company. The Company shall not settle any action or claim that would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably withhold its or his or her consent to indemnification and/or advancement pursuant any proposed settlement; provided, however, Indemnitee shall not be required to the terms consent to any settlement of this Agreement. Nothing herein shall prevent a Proceeding to which he or she is party, unless such settlement is reasonably satisfactory to Indemnitee and releases Indemnitee from employing counsel for all potential Expenses; provided, further, that the Company shall not, on its own behalf, settle any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member part of any approved list of panel counsel under Proceeding to which Indemnitee is party with respect to other parties (including the Company’s applicable directors’ and officers’ ) without the written consent of Indemnitee if any portion of such settlement is to be funded from insurance policy, should the applicable policy provide for a panel of approved counselproceeds.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld, delayed or conditioned) of counsel designated by the Company Company, and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee or separate counsel for Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (Div) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policypolicies, should the applicable policy policies provide for a panel of approved counsel. Nothing herein shall prevent Indemnitee from employing counsel for any Proceeding at Indemnitee’s own expense.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the CompanyIndemnitee in writing, shall be entitled to assume the defense of such Proceeding as provided hereinherein within ten (10) days of the Company’s receipt of such written notice from Indemnitee. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election confirmation to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Cii) the Company fails to employ counsel to assume and diligently conduct the defense of such Proceeding, or (Diii) after in the reasonable opinion of legal counsel to Indemnitee, there is a Change in Controlconflict of interest between Indemnitee and the Company (or any other party or parties being jointly represented) or there are legal defenses available to Indemnitee that are not available to the Company (or any other party or parties being jointly represented), the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expenseexpense or providing the Company with information indicating that there may be a conflict of interest in the conduct of any such defense between (A) the Company and Indemnitee or (B) Indemnitee and any other party or parties being jointly represented. The party having responsibility for defense of a Proceeding shall provide the other party and its legal counsel with all copies of pleadings and material correspondence relating to the Proceeding. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member and the Company shall reasonably cooperate in the defense of any approved list Proceeding with respect to which indemnification is sought hereunder, regardless of panel counsel under whether the Company’s applicable directors’ and officers’ insurance policy, should Company or Indemnitee assumes the applicable policy provide for a panel of approved counseldefense thereof.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld, delayed or conditioned) of counsel designated by the Company Company, and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of separate counsel by Indemnitee Xxxxxxxxxx has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee or separate counsel for Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (Div) after a Change in Control, the employment of counsel by Indemnitee Xxxxxxxxxx has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s 's counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s 's applicable directors’ and officers’ insurance policypolicies, should the applicable policy policies provide for a panel of approved counsel. Nothing herein shall prevent Indemnitee from employing counsel for any Proceeding at Indemnitee's own expense.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against IndemniteeExcept as otherwise provided below, the CompanyCorporation jointly with any other indemnifying party similarly notified may assume Indemnitee’s defense in any Proceeding, if deemed appropriate by with counsel mutually satisfactory to Indemnitee and the Company, shall be entitled to assume Corporation. After notice from the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice Corporation to Indemnitee of the CompanyCorporation’s election to assume the defense of such Proceedingdefense, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company Corporation will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Corporation of its assumption of the defense thereof shall be at Indemnitee’s expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, Corporation, (Bb) Counsel employed by the Corporation initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances, (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee Corporation (or another party being represented jointly with the Corporation) in the conduct of any the defense of such defenseProceeding, or (Cd) the Company fails to employ The Corporation shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Corporation and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Corporation shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Corporation or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Notwithstanding anything in this agreement to the contrary, Indemnitee agrees that shall have the right to employ Indemnitee’s own counsel in connection with any such separate counsel retained by Indemnitee will be a member Proceeding, at the expense of any approved list of panel counsel under the Company’s applicable directors’ , if such counsel serves in a review, observer, advice, and officers’ insurance policycounseling capacity and does not otherwise materially control or participate in the defense of such Proceeding; provided, should however, that Indemnitee must choose his or her own counsel from three options provided to the applicable policy provide for a panel of approved counselIndemnitee by the Company.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding, provided that Indemnitee shall have the right to employ his or her own counsel in connection with any such Proceeding, at the expense of Indemnitee, if such counsel serves in a review, observer, advice and counseling capacity and does not otherwise materially control or participate in the defense of such Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the applicable ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of other counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, Company or (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Cii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees expense or providing the Company with information indicating that there may be a conflict of interest in the conduct of any such separate counsel retained by defense between (A) the Company and Indemnitee or (B) Indemnitee and any other party or parties being jointly represented, in which case the Company will not be a member entitled, without the written consent of Indemnitee, to assume such defense. In addition, the Company will not be entitled, without the written consent of Indemnitee, to assume the defense of any approved list claim brought by or in the right of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee’s defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee’s expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company (i) shall be obligated to advance the Expenses for any Proceeding against IndemniteeIndemnitee by a third party and (ii) acknowledges in writing the Company’s obligation to indemnify the Indemnitee with respect to such Proceeding (subject to the terms of this Agreement), the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations, subject to exceptions set forth below in the event of a potential conflict of interest. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding and the Company’s acknowledgment of its indemnification obligation with respect to such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of separate counsel subsequently incurred by Indemnitee with respect to the same ProceedingProceeding so long as such Proceeding is diligently defended. For the avoidance of doubt, a potential conflict of interest shall be deemed a reasonable basis for the Indemnitee to withhold consent under this section. If (Ai) the employment of counsel by Indemnitee Ixxxxxxxxx has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company (or any other co-clients as provided above) and Indemnitee in the conduct of any such defense, or (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s own counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s own expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated under Section 2(a) hereof to advance pay the Expenses for expenses of any Proceeding against involving Indemnitee, the Company, if deemed appropriate by the Companyappropriate, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense Proceeding, with counsel approved by Indemnitee (such approval not to be unreasonably withheld), upon the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related delivery to joint representations. Following delivery Indemnitee of written notice to Indemnitee of the Company’s its election to assume the defense do so. After delivery of such Proceedingnotice, the approval of such counsel by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If ; provided that (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding at Indemnitee’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such Proceeding, or (D) after a Change in Control, then the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to at the terms expense of this Agreementthe Company. Nothing herein Under no circumstance shall prevent the Company settle any Proceeding (in whole or in part) if such settlement would impose any expense, judgment, fine, penalty or limitation on Indemnitee from employing counsel for any such Proceeding at without Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselprior written consent.

Assumption of Defense. In the event the Company shall be obligated to advance Expenses to the Expenses for any Proceeding against IndemniteeIndemnitee and so long as there shall not have occurred a Change in Control, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense Proceeding, with counsel approved by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) ), upon the delivery to the Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel designated by the Company Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses Expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If , provided that: (Aa) the Indemnitee shall have the right to employ his or her own counsel in any such Proceeding at the Indemnitee’s sole expense (not to be reimbursed or otherwise indemnified or paid by the Company); (b) the Indemnitee shall have the right to employ his or her own counsel in connection with any such Proceeding, at the expense of the Company, if such counsel serves in a reviewer, observer, advice and counseling capacity and does not otherwise materially control or participate in the defense of such Proceeding; and (c) if (i) the employment of counsel by the Indemnitee has been previously authorized by the Company, (Bii) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, defense or (Ciii) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such Proceeding, or (D) after a Change in Control, then the employment fees and Expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to at the terms expense of this Agreementthe Company. Nothing herein The Company shall prevent not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, Loss or limitation on the Indemnitee from employing counsel for any such Proceeding at without the Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselprior written consent.

Assumption of Defense. In the event the Company (i) shall be obligated to advance the Expenses for any Proceeding against IndemniteeIndemnitee by a third party and (ii) acknowledges in writing the Company’s obligation to indemnify the Indemnitee with respect to such Proceeding (subject to the terms of this Agreement), the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations, subject to exceptions set forth below in the event of a potential conflict of interest. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding and the Company’s acknowledgment of its indemnification obligation with respect to such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of separate counsel subsequently incurred by Indemnitee with respect to the same ProceedingProceeding so long as such Proceeding is diligently defended. For the avoidance of doubt, a potential conflict of interest shall be deemed a reasonable basis for the Indemnitee to withhold consent under this section. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company (or any other co-clients as provided above) and Indemnitee in the conduct of any such defense, or (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s own counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s own expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, or (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Cii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees expense or providing the Company with information indicating that there may be a conflict of interest in the conduct of any such separate counsel retained by defense between (A) the Company and Indemnitee will be a member of or (B) Indemnitee and any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselother party or parties being jointly represented.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or . In each of the cases set forth in items (Da) after a Change in Controlthrough (d) above, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have reached either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against the Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to the Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by the Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by the Indemnitee has been previously authorized by the Company, (B) the Indemnitee shall have notified the Board in writing that notwithstanding counsel’s determination that joint representation is permitted under the ethical rules and legal requirements related to such representations, the Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee, or between Indemnitee and any other current or former director, officer or employee of the Company who is a named defendant in such Proceeding and is represented by such counsel, in the conduct of any such defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in ControlProceeding within 30 days, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent the Indemnitee from employing counsel for any such Proceeding at the Indemnitee’s expense. Indemnitee agrees that For the avoidance of doubt, in any such separate counsel retained Proceeding brought by Indemnitee will be a member or in the right of any approved list of panel counsel under the Company’s applicable directors’ , Indemnitee shall be deemed to have a reasonable basis to conclude that a conflict of interest between the Company and officers’ insurance policy, should the applicable policy provide Indemnitee exists for a panel the purposes of approved counselclause (B) of this paragraph.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee Xxxxxxxxxx has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company For any claim, Vendor shall be obligated to advance defend the Expenses for any Proceeding Lowe’s Indemnitees in question. Vendor shall pay all judgments against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to and assume the defense of Lowe’s Indemnitees upon Lowe’s Indemnitees’ demand with respect to any claim, even if any such Proceeding allegation of liability is groundless, false or fraudulent. Notwithstanding the above, the Lowe’s Indemnitees shall have the right but not the obligation to participate as provided hereinthey deem necessary in the handling, adjustment, defense or settlement of any such matters. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume To facilitate the defense of such Proceedingthe Lowe’s Indemnitees, Lowe’s shall be entitled, upon notice to Vendor, at any time, to (i) designate counsel to be used by Vendor to defend the Lowe’s Indemnitees, at Vendor’s sole expense; (ii) approve of Vendor’s selection of counsel to defend the Lowe’s Indemnitees, at Vendor’s sole expense; or (iii) undertake and assume sole control of the Lowe’s Indemnitees’ defense with counsel of Lowe’s own selection, at Vendor’s sole expense. With respect to any claim, Vendor agrees that the relevant Lowe’s Indemnitees shall have the right, at its/their own expense, to employ separate counsel. To the extent the Lowe’s Indemnitees are under the direct control of Lowe’s, the approval Lowe’s Indemnitees shall, to a commercially reasonable extent, cooperate fully with and assist Vendor in the Lowe’s defense. Vendor shall keep the relevant Lowe’s Indemnitees and its designees fully apprised at all times as to the status of the defense including, but not limited to, providing reports and information, and all offers of settlement, at times and in a format designated by Indemnitee (which approval Lowe’s. The Lowe’s Indemnitees shall not be unreasonably withheld) of counsel designated bound by and Vendor has no authority to bind the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by IndemniteeLowe’s counsel shall be subject to indemnification and/or advancement pursuant Indemnitees to the terms of any settlement or compromise of a claim entered into by Vendor unless Lowe’s has given its prior written consent. The Lowe’s Indemnitees shall have the exclusive right, at their sole option to settle or otherwise proceed to resolution of any dispute at their discretion. Vendor agrees that it will reimburse Lowe’s Indemnitees for all payments, costs and expenses paid by or for Lowe’s Indemnitees in respect to said settlement. Lowe’s Indemnitees, at their sole option, may charge back or setoff any monies due by Vendor to Lowe’s in respect to the settlement of any claims under this Agreement. Nothing herein shall prevent Indemnitee from employing counsel In furtherance of Lowe’s Indemnitees’ right of setoff, Lowe’s may withhold monies in advance, for any such Proceeding at Indemniteeall payments, costs and expenses paid by or for Lowe’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member Indemnitees in respect of the settlement of any approved list of panel counsel claims under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselthis Agreement.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, The Indemnitor shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Event at its own expense and, except as otherwise provided below, to the extent the Indemnitor so wishes, it may assume the defense thereof with counsel reasonably acceptable to the Indemnitee upon the delivery to the Indemnitee of such Proceeding as provided hereinwritten notice of its election to do so. Such Upon assumption of the defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company Indemnitor and the retention of such counsel by the CompanyIndemnitor, the Company will Indemnitor shall not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding, provided that the Indemnitee shall have the right to employ separate counsel in such Proceeding at the Indemnitee's sole cost and expense. If Notwithstanding the Indemnitor's assumption of the defense of any such Proceeding, the Indemnitor shall be obligated to pay the fees and expenses of the Indemnitee's counsel to the extent (Ai) the employment of counsel by the Indemnitee has been previously is authorized by the CompanyIndemnitor, (Bii) counsel for the Indemnitor or the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be is a conflict of interest between the Company Indemnitor and the Indemnitee in the conduct of any such defense such that the Indemnitee needs to be separately represented, (iii) the fees and expenses are non-duplicative and reasonably incurred in connection with the Indemnitee's role in the Proceeding despite the Indemnitor's assumption of the defense, (Civ) the Company fails Indemnitor is not financially or legally able to employ perform its indemnification obligations or (v) the Indemnitor shall not have retained, or shall not continue to retain, such counsel to assume defend such Proceeding. In the event the Indemnitor assumes the defense of such Proceeding, or (D) after a Change in Controlas contemplated herein, the employment Indemnitor may not enter into a Settlement of counsel by Claims with respect to such Proceeding as it relates to Claims against the Indemnitee has been approved by without the Independent Counselprior consent of the Indemnitee, and which consent shall not be unreasonably withheld. Regardless of any provision in this Agreement, the Expenses related Indemnitee shall have the right to work conducted by Indemnitee’s employ counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for in any such Proceeding at the Indemnitee’s 's personal expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will The Indemnitor shall not be a member entitled, without the consent of the Indemnitee, to assume the defense of any approved list claim brought by or in the right of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselIndemnitor.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of or interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If (ACompany of its assumption of the defense thereof shall be at Indemnitee's expense unless: a) the The employment of counsel by Indemnitee has been previously authorized by the Company, (B; b) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, (CProceeding; or d) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (C) above.

Assumption of Defense. In the event If the Company shall be obligated to advance pay Expenses arising in connection with any Claim against the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense Claim, with counsel approved by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which whose approval shall not be unreasonably withheld) ), upon the delivery to the Indemnitee of notice of its election to do so. After delivery of such notice, approval of such counsel designated by the Company Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If Claim; provided that (i) the Indemnitee shall have the right to employ the Indemnitee's own counsel in connection with any Claim at the Indemnitee's expense; (ii) if (A) the employment of counsel by the Indemnitee has shall have been previously authorized by the Company, (B) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (C) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such ProceedingClaim, or (D) after a Change in Control, each such case the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s 's counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained paid by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ ; and officers’ insurance policy(iii) the Company shall not settle any Claim in any manner which would impose any penalty, should limitation or unindemnified Expense on the applicable policy provide for a panel of approved counselIndemnitee without the Indemnitee's consent. If the Reviewing Party is Independent Legal Counsel, then the Indemnitee shall select such Independent Legal Counsel as determined in Section 1(f).

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against IndemniteeExcept as otherwise provided below, the CompanyCorporation jointly with any other indemnifying party similarly notified may assume Indemnitee’s defense in any Proceeding, if deemed appropriate by with counsel mutually satisfactory to Indemnitee and the Company, shall be entitled to assume Corporation. After notice from the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice Corporation to Indemnitee of the CompanyCorporation’s election to assume the defense of such Proceedingdefense, the approval by Indemnitee (which approval Corporation shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Corporation of the Corporation’s assumption of the defense thereof shall be at Indemnitee’s expense unless: (Aa) the employment of counsel by Indemnitee has been previously is authorized by the Company, Corporation, (Bb) counsel employed by the Corporation initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances, (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded concludes that there may be is a conflict of interest between Indemnitee and the Company and Indemnitee Corporation (or another party being represented jointly with the Corporation) in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or or (Dd) after a Change the Corporation does not employ counsel promptly to assume the defense of the Proceeding, in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Corporation and subject to indemnification and/or advancement pursuant to the terms of payment under this Agreement. Nothing herein The Corporation shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Corporation or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. (a) In the event the Company shall be obligated is requested by Indemnitee to advance pay the Expenses for of any Proceeding against IndemniteeProceeding, the Company, if deemed appropriate by the Companyappropriate, shall will be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such that Proceeding, or to participate to the approval extent permissible in that Proceeding, with counsel approved by Indemnitee (Indemnitee, which approval shall may not be unreasonably withheld) withheld or delayed. Upon assumption of counsel designated the defense by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided, that Indemnitee will have the right to employ separate counsel in that Proceeding at Indemnitee's sole cost and expense. If (A) After the employment Company has assumed the defense of a Proceeding, Indemnitee will be entitled to, at Indemnitee's own expense, engage counsel for the purpose of monitoring the defense being provided by Indemnitee has been previously authorized counsel retained by the Company, and the Company must direct that counsel to cooperate with and provide requested information to Indemnitee's monitoring counsel. Notwithstanding the foregoing, if (Bi) Indemnitee shall have notified Indemnitee's counsel delivers a written notice to the Board in writing Company stating that Indemnitee such counsel has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense in the Proceeding, (Cii) the Company fails to employ has not, in fact, employed counsel to assume or otherwise actively pursued the defense of such the Proceeding within a reasonable time, or thereafter reasonably maintained the defense of the Proceeding, (iii) there has been a Change in Control (as defined below), or (Div) after a Change in Control, the employment of Indemnitee reasonably concludes that counsel by Indemnitee has been approved engaged by the Independent CounselCompany on behalf of Indemnitee may not adequately represent Indemnitee, then in any such event the Expenses related fees and expenses of Indemnitee's counsel to work conducted by Indemnitee’s counsel shall defend the Proceeding must be at the expense of the Company and subject to the indemnification and/or and advancement pursuant to the terms of expenses provisions of this Agreement. Nothing herein shall prevent Indemnitee from employing Provided, however, that in the event there are other defendants in a Proceeding who are entitled to counsel other than counsel engaged by the Company, the Company will only be obligated to pay the fees and expenses of one (1) counsel for all those defendants, including Indemnitee, unless Indemnitee's counsel delivers a written notice to the Company stating that such counsel has reasonably concluded that there may be a conflict of interest that would prevent one (1) counsel from representing all such defendants, including Indemnitee. (b) For purposes of this Agreement, a "Change in Control" is deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, (A) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing ten percent (10%) or more of the combined voting power of the Company's then outstanding Voting Securities (as defined below), increases his, her or its beneficial ownership of such securities by five percent (5%) or more over the percentage so owned by such person, or (B) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than twenty percent (20%) of the (c) total voting power represented by the Company's then outstanding Voting Securities, (ii) during any period of two (2) consecutive years, individuals who at the beginning of that period constitute the Board and any new director whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the Company merges or consolidates with any other corporation other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity, or its ultimate parent) at least sixty percent (60%) of the total voting power represented by the Voting Securities, as defined below, of the Company or such surviving entity, or its ultimate parent, outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one (1) transaction or a series of transactions) all or substantially all of the Company's assets, (iv) the Company commences any case, action or proceeding before any court or governmental body (or a third party commences any such Proceeding at Indemnitee’s expense. Indemnitee agrees proceeding that remains undismissed by or consented to within sixty (60) days) relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (v) the Company commences any such separate counsel retained by Indemnitee will be a member general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other similar arrangement in respect of its creditors generally or any approved list substantial portion of panel counsel under its creditors. (d) For purposes of this Agreement, "Voting Securities" means any securities of the Company’s applicable Company that vote generally in the election of directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such ProceedingProceeding within 60 days, or (D) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance pay the Expenses for of the Indemnitee with respect to any Proceeding against IndemniteeProceeding, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by Proceeding, with counsel of its choosing, upon the Company may include delivery to the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery Indemnitee of written notice of its election to Indemnitee do so, which written notice shall be delivered within ten (10) calendar days after receipt of written notice of the Company’s election Proceeding pursuant to assume the defense Section 5(a) above. After delivery of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companynotice, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses Expenses of counsel which are subsequently incurred by the Indemnitee with respect to the same Proceeding. If ; provided, however, that the Indemnitee shall have the right to employ his counsel in any such Proceeding at the Indemnitee’s expense; and provided further, that if (Ai) the employment of counsel by the Indemnitee has been previously authorized by the Company, or (Bii) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defensedefense or that Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with the position of other defendants in such Proceeding, or (Ciii) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such ProceedingProceeding in a timely manner, or (D) after a Change then, in Controlany such case, the employment fees and Expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject at the expense of the Company. In addition, if the Company fails to indemnification and/or advancement comply with any of its obligations under this Agreement or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any action, suit or Proceeding to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s choice, at the expense of the Company, to represent Indemnitee in connection with any such matter. The Company shall not, without the prior written consent of Indemnitee, consent to the entry of any judgment against Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of such Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee. This Section 5(c) shall not apply to a Proceeding brought by Indemnitee under Section 6 below or pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselSection 7(a) or (b) below.

Assumption of Defense. In the event the Company shall be obligated If any claim for indemnification by Indemnitee arises out of a claim for monetary damages by a Person other than Indemnitee, and provided Indemnitor is not objecting to advance the Expenses for any Proceeding against its obligation to indemnify Indemnitee, the CompanyIndemnitor may, if deemed appropriate by at its own expense (a) participate in the Companydefense of any claim, shall be suit, action or proceeding and (b) upon notice to the Indemnitee and the Indemnitor's delivering to the Indemnitee a written agreement that the Indemnitor is entitled to indemnification pursuant to Section 8.1 or ----------- 8.2 for all Losses arising out of such claim, suit, action or proceeding, at any --- time during the course of any such claim, suit, action or proceeding, assume the defense of thereof; provided, that (i) the Indemnitor's counsel is reasonably satisfactory to the Indemnitee and (ii) the Indemnitor shall thereafter consult with and update the Indemnitee upon the Indemnitee's reasonable request for such Proceeding as provided hereinconsultation or update from time to time with respect to such claim, suit, action or proceeding. Such If the Indemnitor assumes such defense, the Indemnitee shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Company may include Indemnitor. Whether or not the representation of two Indemnitor chooses to defend or more parties by one attorney prosecute any such claim, suit, action or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee proceeding, all of the Company’s election to assume parties hereto shall reasonably cooperate in the defense or prosecution thereof. A party may not compromise or settle a claim, suit, action or proceeding affecting the liability of such Proceedingany Indemnitor without the written consent of the Indemnitor, the approval by Indemnitee (which approval shall consent may not be unreasonably withheld) . Neither the Indemnitee nor the Indemnitor shall, without the written consent of counsel designated the Indemnitor or Indemnitee, respectively, settle or compromise any claim, suit, action or proceeding or consent to entry of any judgment in respect thereof unless such settlement, compromise or consent includes an unconditional release by the Company claimant or the plaintiff of the Indemnitee and the retention Indemnitor from all liability in respect of such counsel by the Companyclaim, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Companysuit, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, action or (D) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselproceeding.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement Deed for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this AgreementDeed. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance pay the Expenses for of the Indemnitee with respect to any Proceeding against IndemniteeProceeding, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by Proceeding, with counsel of its choosing, upon the Company may include delivery to the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery Indemnitee of written notice of its election to Indemnitee do so, which written notice shall be delivered within ten (10) calendar days after receipt of written notice of the Company’s election Proceeding pursuant to assume the defense Section 5(a) above. After delivery of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companynotice, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses Expenses of counsel which are subsequently incurred by the Indemnitee with respect to the same Proceeding. If ; provided, however, that the Indemnitee shall have the right to employ his counsel in any such Proceeding at the Indemnitee's expense; and provided further, that if (Ai) the employment of counsel by the Indemnitee has been previously authorized by the Company, or (Bii) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defensedefense or that Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with the position of other defendants in such Proceeding, or (Ciii) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such ProceedingProceeding in a timely manner, or (D) after a Change then, in Controlany such case, the employment fees and Expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s 's counsel shall be subject at the expense of the Company. In addition, if the Company fails to indemnification and/or advancement comply with any of its obligations under this Agreement or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any action, suit or Proceeding to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel of Indemnitee's choice, at the expense of the Company, to represent Indemnitee in connection with any such matter. The Company shall not, without the prior written consent of Indemnitee, consent to the entry of any judgment against Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of such Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee. This Section 5(c) shall not apply to a Proceeding brought by Indemnitee under Section 6 below or pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselSection 7(a) or (b) below.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee Iindemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, . In each of these cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will shall not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has Indexxxxxx xxx been previously authorized by the Company, ; (Bb) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, ; In each of which cases the employment fees and expenses of counsel employed by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company shall be obligated Except with respect to advance the Expenses Tax matters (which for any Proceeding against Indemniteeall purposes of this Section 11.06 are subject to Section 6.05), the CompanyPetros Pension Plan Litigation (which for all purposes of this Section 11.06 is subject to Section 11.13) and any Cubatão Litigation relating primarily to the Cubatão Business (which for all purposes of this Section 11.06 is subject to Section 11.14), if deemed appropriate the Indemnifying Person may, at its own expense, (i) participate in the defense of any Third Party Claim or (ii) by giving written notice to the CompanyIndemnified Person as promptly as reasonably practicable after receipt of the Claim Notice (and in any event within fifteen (15) Business Days of receipt of such Claim Notice), shall be entitled to assume the defense thereof if, in the case of this clause (ii), (A) the Indemnifying Person’s counsel is reasonably satisfactory to the Indemnified Person; (B) the Indemnifying Person shall thereafter consult with and update the Indemnified Person and make all pertinent information under its control related to such Proceeding as provided hereinThird Party Claim available to the Indemnified Person on a reasonably prompt basis; and (C) the Third Party Claim involves only monetary damages and is not a criminal or quasi-criminal Action and does not seek any material injunction or other material equitable relief against any Indemnified Person. Such Except with respect to the Petros Pension Plan Litigation which is subject to Section 11.13, if the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the obligation) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee Indemnifying Person (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for other than any fees and expenses of such separate counsel subsequently that are incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company date the Indemnified Person provides the Indemnifying Person with the Claim Notice and Indemnitee in the conduct date the Indemnifying Person effectively assumes control of any such defense, which fees and expenses, shall, notwithstanding the foregoing but subject to the limitations set forth in this Article XI, be borne by the Indemnifying Person to the extent the underlying matter is determined to be subject to indemnification pursuant to this Article XI); provided, however, that the Indemnified Person may hire separate counsel, and the reasonable fees and expenses of such counsel shall be borne by the Indemnifying Person if (Cx) the Company Indemnifying Person fails to employ counsel to assume actively and diligently conduct the defense of such ProceedingThird Party Claim, the Indemnified Person has notified the Indemnifying Person of such failure and the Indemnifying Person does not cure such failure within twenty (20) Business Days following receipt of such notice, (y) upon reasonable advice of counsel to the Indemnified Person that a conflict or potential conflict exists between the Indemnified Person and the Indemnifying Person that would make such separate representation advisable or (Dz) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant one or more defenses are available to the terms of this AgreementIndemnified Person that are not available to the Indemnifying Person. Nothing herein shall prevent Indemnitee from employing counsel for Whether or not the Indemnifying Person chooses to defend or prosecute any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member Third Party Claim, all of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should Parties shall reasonably cooperate in the applicable policy provide for a panel of approved counseldefense or prosecution thereof.

Assumption of Defense. (a) In the event the Company shall be obligated is requested by Indemnitee to advance pay the Expenses for of any Proceeding against IndemniteeProceeding, the Company, if deemed appropriate by the Companyappropriate, shall will be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such that Proceeding, or to participate to the approval extent permissible in that Proceeding, with counsel approved by Indemnitee (Indemnitee, which approval shall may not be unreasonably withheld) withheld or delayed. Upon assumption of counsel designated the defense by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided, that Indemnitee will have the right to employ separate counsel in that Proceeding at Indemnitee’s sole cost and expense. If (A) After the employment Company has assumed the defense of a Proceeding, Indemnitee will be entitled to, at Indemnitee’s own expense, engage counsel for the purpose of monitoring the defense being provided by Indemnitee has been previously authorized counsel retained by the Company, and the Company must direct that counsel to cooperate with and provide requested information to Indemnitee’s monitoring counsel. Notwithstanding the foregoing, if (Bi) Indemnitee shall have notified Indemnitee’s counsel delivers a written notice to the Board in writing Company stating that Indemnitee such counsel has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense in the Proceeding, (Cii) the Company fails to employ has not, in fact, employed counsel to assume or otherwise actively pursued the defense of such the Proceeding within a reasonable time, or thereafter reasonably maintained the defense of the Proceeding, (iii) there has been a Change in Control (as defined below), or (Div) after a Change in Control, the employment of Indemnitee reasonably concludes that counsel by Indemnitee has been approved engaged by the Independent CounselCompany on behalf of Indemnitee may not adequately represent Indemnitee, then in any such event the Expenses related to work conducted by fees and expenses of Indemnitee’s counsel shall to defend the Proceeding must be at the expense of the Company and subject to the indemnification and/or and advancement pursuant to the terms of expenses provisions of this Agreement. Nothing herein shall prevent Indemnitee from employing Provided, however, that in the event there are other defendants in a Proceeding who are entitled to counsel other than counsel engaged by the Company, the Company will only be obligated to pay the fees and expenses of one (1) counsel for any such Proceeding at all those defendants, including Indemnitee, unless Indemnitee’s expense. Indemnitee agrees counsel delivers a written notice to the Company stating that any such separate counsel retained by Indemnitee will has reasonably concluded that there may be a member conflict of interest that would prevent one (1) counsel from representing all such defendants, including Indemnitee. (b) For purposes of this Agreement, a “Change in Control” is deemed to have occurred if (i) any approved list “person” (as such term is used in Sections 13(d) and 14(d) of panel counsel the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, (A) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing ten percent (10%) or more of the combined voting power of the Company’s applicable then outstanding Voting Securities (as defined below), increases his, her or its beneficial ownership of such securities by five percent (5%) or more over the percentage so owned by such person, or (B) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than twenty percent (20%) of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) during any period of two (2) consecutive years, individuals who at the beginning of that period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the Company merges or consolidates with any other corporation other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity, or its ultimate parent) at least sixty percent (60%) of the total voting power represented by the Voting Securities, as defined below, of the Company or such surviving entity, or its ultimate parent, outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one (1) transaction or a series of transactions) all or substantially all of the Company’s assets, (iv) the Company commences any case, action or proceeding before any court or governmental body (or a third party commences any such proceeding that remains undismissed by or consented to within sixty (60) days) relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (v) the Company commences any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors. (c) For purposes of this Agreement, “Voting Securities” means any securities of the Company that vote generally in the election of directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance pay the Expenses for expenses of any Proceeding proceeding against or involving the Indemnitee, the Company, if deemed appropriate by the Companyappropriate, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense proceeding, with counsel approved by the Company may include Indemnitee, upon the representation of two or more parties by one attorney or law firm as permitted under delivery to the ethical rules and legal requirements related to joint representations. Following delivery Indemnitee of written notice to Indemnitee of the Company’s its election to assume the defense do so. After delivery of such Proceedingnotice, the approval by Indemnitee (which approval shall not be unreasonably withheld) of such counsel designated by the Company Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If proceeding, provided that: (Ai) the Indemnitee shall have the right to employ his or her counsel in such proceeding at the Indemnitee's expense; and (ii) if (a) the employment of counsel by the Indemnitee has been previously authorized by the Company, (Bb) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (Cc) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such Proceeding, or (D) after a Change in Controlproceeding, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s 's counsel shall be subject at the expense of the Company. The Company shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending action, suit or proceeding to indemnification and/or advancement pursuant to which the terms Indemnitee is, or could have been, a party unless such settlement solely involves the payment of this Agreement. Nothing herein shall prevent money and includes a complete and unconditional release of the Indemnitee from employing counsel for all liability on any claims that are the subject matter of such Proceeding at action, suit or proceeding. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement. The Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In If any Claim relating to an Indemnifiable Event, commenced against Indemnitee is also commenced against the event Company, the Company shall be obligated entitled to advance participate therein at its own expense, and, except as otherwise provided hereinbelow, to the Expenses for any Proceeding against Indemniteeextent that it may wish, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided hereinthereof. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s its election to assume the defense of such Proceedingany Claim, the approval by Indemnitee (which approval Company shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable obligated to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation, travel, and lodging expenses arising out of Indemnitee’s participation in such Claim. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Claim, but the fees and expenses of such counsel subsequently incurred by after notice from the Company to Indemnitee with respect to of its assumption of the same Proceeding. If defense thereof shall be at the expense of Indemnitee unless (Ai) the employment of counsel by Indemnitee has been previously otherwise authorized by the Company, (Bii) Indemnitee shall have reasonably concluded, and so notified the Board in writing that Indemnitee has reasonably concluded Company, that there may be a conflict of interest between the Company and Indemnitee in the conduct of any the defense of such defenseClaim, or (Ciii) the Company fails shall not in fact have employed counsel reasonably acceptable to employ counsel Indemnitee to assume the defense of such Proceeding, or Claim (D) after a Change in Control, the employment of counsel which such acceptance by Indemnitee has been approved by shall not be unreasonably withheld), in which cases the Independent Counsel, the Expenses related to work conducted by fees and expenses of Indemnitee’s counsel shall be subject at the expense of the Company. The Company shall not be entitled to indemnification and/or advancement pursuant assume the defense of any Claim brought by or on behalf of the Company or its stockholders or as to which Indemnitee shall have made the terms conclusion set forth in (ii) of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselSection 14.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding, provided that Indemnitee shall have the right to employ his or her own counsel in connection with any such Proceeding, at the expense of the Company, if such counsel serves in a review, observer, advice and counseling capacity and does not otherwise materially control or participate in the defense of such Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, or (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees expense or providing the Company with information indicating that there may be a conflict of interest in the conduct of any such separate counsel retained by defense between (i) the Company and Indemnitee will be a member of or (ii) Indemnitee and any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselother party or parties being jointly represented.

Assumption of Defense. In the event If the Company shall be obligated to advance pay Expenses arising in connection with any Claim against the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by Indemnitee may in its sole discretion (but shall not be obligated to) allow the Company, shall be entitled Company to assume the defense of such Proceeding as provided herein. Such defense Claim, with counsel approved by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which whose approval shall not be unreasonably withheld) ), upon the delivery to the Company of notice of Indemnitee’s election to so tender the defense of such Claim. After delivery of such notice, approval of such counsel designated by the Company Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If Claim; provided that in any such event (i) the Indemnitee shall have the right to employ the Indemnitee’s own counsel in connection with any Claim at the Indemnitee’s expense; (ii) if (A) the employment of counsel by the Indemnitee has shall have been previously authorized by the Company, (B) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (C) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such ProceedingClaim, or (D) after a Change in Control, each such case the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject paid by the Company, it being agreed and understood that the Company shall only be required to indemnification and/or advancement pursuant to pay the terms fees and expenses of this Agreement. Nothing herein one separate counsel (plus, if necessary, one local counsel); and (iii) the Company shall prevent not settle any Claim in any manner which would impose any penalty, limitation or unindemnified Expense on the Indemnitee from employing counsel for any such Proceeding at without the Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselconsent.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or . In each of the cases set forth in items (Da) after a Change in Controlthrough (d) above, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have reached either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Notwithstanding anything in this agreement to the contrary, Indemnitee agrees that shall have the right to employ Indemnitee’s own counsel in connection with any such separate counsel retained by Indemnitee will be a member Proceeding, at the expense of any approved list of panel counsel under the Company’s applicable directors’ , if such counsel serves in a review, observer, advice, and officers’ insurance policycounseling capacity and does not otherwise materially control or participate in the defense of such Proceeding; provided, should however, that Indemnitee must choose his or her own counsel from three options provided to the applicable policy provide for a panel of approved counselIndemnitee by the Company.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel designated by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to actually employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. In addition to all the requirements above, if the Company has D&O Insurance, or other insurance, with a panel counsel requirement that may cover the matter for which indemnity is claimed by Indemnitee, then Indemnitee shall use such panel counsel or other counsel approved by the insurer, unless there is an actual conflict of interest posed by representation by all such counsel, or unless and to the extent Company waives such requirement in writing. The Indemnitee and its counsel shall provide reasonable cooperation with such insurer on request of the Company. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, other indemnifying party similarly notified shall be entitled to assume an Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to the defense of such Proceeding as provided hereinIndemnitee and the Company. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to an Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will shall not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. An Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If (A) Company of its assumption of the defense thereof shall be at the Indemnitee's expense unless: a. The employment of counsel by an Indemnitee has been previously authorized by the Company, (B) ; b. Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; c. An Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between an Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, (C) the Proceeding; or d. The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of an Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which an Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clause (b) or (c) above.

Assumption of Defense. (a) In the event the Company shall be obligated is requested by Indemnitee to advance pay the Expenses for of any Proceeding against IndemniteeProceeding, the Company, if deemed appropriate by the Companyappropriate, shall will be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such that Proceeding, or to participate to the approval extent permissible in that Proceeding, with counsel approved by Indemnitee (Indemnitee, which approval shall may not be unreasonably withheld) withheld or delayed. Upon assumption of counsel designated the defense by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided, that Indemnitee will have the right to employ separate counsel in that Proceeding at Indemnitee's sole cost and expense. If (A) After the employment Company has assumed the defense of a Proceeding, Indemnitee will be entitled to, at Indemnitee's own expense, engage counsel for the purpose of monitoring the defense being provided by Indemnitee has been previously authorized counsel retained by the Company, and the Company must direct that counsel to cooperate with and provide requested information to Indemnitee's monitoring counsel. Notwithstanding the foregoing, if (Bi) Indemnitee shall have notified Indemnitee's counsel delivers a written notice to the Board in writing Company stating that Indemnitee such counsel has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense in the Proceeding, (Cii) the Company fails to employ has not, in fact, employed counsel to assume or otherwise actively pursued the defense of such the Proceeding within a reasonable time, or thereafter reasonably maintained the defense of the Proceeding, (iii) there has been a Change in Control (as defined below), or (Div) after a Change in Control, the employment of Indemnitee reasonably concludes that counsel by Indemnitee has been approved engaged by the Independent CounselCompany on behalf of Indemnitee may not adequately represent Indemnitee, then in any such event the Expenses related fees and expenses of Indemnitee's counsel to work conducted by Indemnitee’s counsel shall defend the Proceeding must be at the expense of the Company and subject to the indemnification and/or and advancement pursuant to the terms of expenses provisions of this Agreement. Nothing herein shall prevent Indemnitee from employing Provided, however, that in the event there are other defendants in a Proceeding who are entitled to counsel other than counsel engaged by the Company, the Company will only be obligated to pay the fees and expenses of one (1) counsel for all those defendants, including Indemnitee, unless Indemnitee's counsel delivers a written notice to the Company stating that such counsel has reasonably concluded that there may be a conflict of interest that would prevent one (1) counsel from representing all such defendants, including Indemnitee. (b) For purposes of this Agreement, a "Change in Control" is deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, (A) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing ten percent (10%) or more of the combined voting power of the Company's then outstanding Voting Securities (as defined below), increases his, her or its beneficial ownership of such securities by five percent (5%) or more over the percentage so owned by such person, or (B) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than twenty percent (20%) of the total voting power represented by the Company's then outstanding Voting Securities, (ii) during any period of two (2) consecutive years, individuals who at the beginning of that period constitute the Board and any new director whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the Company merges or consolidates with any other corporation other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity, or its ultimate parent) at least sixty percent (60%) of the total voting power represented by the Voting Securities, as defined below, of the Company or such surviving entity, or its ultimate parent, outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one (1) transaction or a series of transactions) all or substantially all of the Company's assets, (iv) the Company commences any case, action or proceeding before any court or governmental body (or a third party commences any such Proceeding at Indemnitee’s expense. Indemnitee agrees proceeding that remains undismissed by or consented to within sixty (60) days) relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (v) the Company commences any such separate counsel retained by Indemnitee will be a member general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other similar arrangement in respect of its creditors generally or any approved list substantial portion of panel counsel under its creditors. (c) For purposes of this Agreement, "Voting Securities" means any securities of the Company’s applicable Company that vote generally in the election of directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In If the event Indemnitee requests CPP to pay Expenses under this Agreement, CPP has the Company shall right, to the extent permissible under law, to assume sole control of the defense of the Proceeding pertaining to those Expenses, or to participate in it, by providing the Indemnitee written notice (the “Defense Notice”) of CPP’s exercise of that right with counsel of CPP’s choice. The Defense Notice must identify the counsel chosen by CPP for those purposes. CPP’s counsel must be obligated reasonably acceptable to advance the Expenses for any Proceeding against Indemnitee. If the Indemnitee does not notify CPP in writing of its reasonable objections, if any, to the counsel identified in the Defense Notice on or before the date ten business days after delivery of the Defense Notice to the Indemnitee, the Company, if Indemnitee will be deemed appropriate by the Company, shall be entitled to assume the defense have approved CPP’s choice of such Proceeding as provided hereincounsel identified therein for those purposes. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following Upon delivery of written notice to Indemnitee of the Company’s election to assume the defense of such ProceedingDefense Notice, the approval by Indemnitee (which approval shall not be unreasonably withheldor deemed approval) of counsel designated by the Company CPP’s counsel, and the CPP’s actual retention of such counsel by the Companyfor those purposes, the Company CPP will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same for that Proceeding. If The Indemnitee may retain separate counsel in that Proceeding, which counsel for the Indemnitee will be retained at the Indemnitee’s sole cost and expense unless: (Aa) CPP earlier authorized the Indemnitee to retain separate counsel at CPP’s expense; (b) the employment Indemnitee earlier and timely objected to CPP’s choice of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that because the Indemnitee has reasonably concluded that there may be a conflict of interest between CPP and the Company and Indemnitee in the conduct of any such defense, defense in that Proceeding and the basis for that reasonable conclusion is set forth in the Indemnitee’s timely written objection delivered to CPP; or (Cc) the Company CPP fails to employ retain, in fact, counsel to assume or otherwise actively pursue the defense of such Proceedingthe Proceeding within a reasonable time. In the case of clause (a), (b) or (Dc) after a Change in Controlabove, then CPP will indemnify the Indemnitee for, and advance to the Indemnitee, the employment actual and reasonable fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of defend that Proceeding as provided in this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee’s defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel Expenses subsequently incurred by Indemnitee in connection with respect the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the same Proceeding. If fees and Expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at Indemnitee’s expense unless: (Aa) the employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or . In each of the cases set forth in clauses (Da) after a Change in Controlthrough (d) above, the employment fees and Expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have reached either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In Indemnitor shall have the event right, in its sole and absolute discretion, to elect, upon written notice given to the Company shall be obligated Indemnitee within thirty (30) days after Indemnitor's receipt of the Indemnification Notice, to advance investigate and/or defend such claim, suit, action or proceeding with counsel selected by Indemnitor and reasonably acceptable to Indemnitee and if the Expenses for any Proceeding against Indemnitor-designated counsel is acceptable to Indemnitee, then Indemnitor shall thereafter consult with Indemnitee and keep Indemnitee informed with respect to such claim, suit, action or proceeding. If the CompanyIndemnitor-designated counsel is not reasonably acceptable to Indemnitee, or if deemed appropriate by Indemnitor elects to undertake the Companydefense and thereafter fails to do so, then in either of such cases, Indemnitee shall be entitled to assume designate its own counsel and the costs and expenses of Indemnitee in defending the claim, suit, action or proceeding shall be included in the obligation to be indemnified hereunder. If Indemnitor assumes the defense and the Indemnitor-designated counsel is reasonably acceptable to Indemnitee, then Indemnitee shall have the right (but not the duty) to participate in the defense 39 44 thereof and to employ (at Indemnitee's sole cost and expense) counsel separate from the Indemnitor-designated counsel, but Indemnitor shall nevertheless have control of the defense. If Indemnitor elects not to undertake the investigation or defense of such Proceeding as provided hereinclaim, suit, action or proceeding, Indemnitee shall defend such claim, suit, action or proceeding with counsel selected by Indemnitee and reasonably acceptable to Indemnitor. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related If Indemnitor elects to joint representations. Following delivery of written notice to cause Indemnitee of the Company’s election to assume the defense, Indemnitor shall have the right (but not the duty) to participate in the defense of thereof and to employ (at Indemnitor's sole cost and expense) counsel separate from the counsel employed by Indemnitee. Whether or not Indemnitor elects to defend any such Proceedingclaim, the approval by suit, action or proceeding, Indemnitor and Indemnitee (which approval i) shall not be unreasonably withheldcooperate in the defense thereof; (ii) of counsel designated by shall each take commercially reasonable efforts to mitigate the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees damages and expenses of counsel subsequently incurred by Indemnitee with respect to be indemnified hereunder; and (iii) to the same Proceeding. If (A) the employment extent that both of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company Indemnitor and Indemnitee in the conduct deem it commercially reasonable, shall enter into any compromise or settlement of any such defenseclaim, (C) suit, action or proceeding which the Company fails to employ counsel to assume party controlling the defense of such Proceeding, or (D) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement thereof pursuant to the terms of this Agreementforegoing is able to negotiate. Nothing herein Where, pursuant to the foregoing, either Indemnitor or Indemnitee elects to use "additional" counsel at its sole cost and expense, said cost and expense shall prevent Indemnitee from employing counsel for not, in any such Proceeding at Indemnitee’s expense. Indemnitee agrees event, reduce that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselparty's Indemnity Obligation Limitation (as defined below) hereunder.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against IndemniteeExcept as otherwise provided below, the CompanyCorporation jointly with any other indemnifying party similarly notified may assume Indemnitee's defense in any Proceeding, if deemed appropriate by with counsel mutually satisfactory to Indemnitee and the Company, shall be entitled to assume Corporation. After notice from the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice Corporation to Indemnitee of the Company’s Corporation's election to assume the defense of such Proceedingdefense, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company Corporation will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Corporation of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, Corporation, (Bb) Counsel employed by the Corporation initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances, (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee Corporation (or another party being represented jointly with the Corporation) in the conduct of any the defense of such defenseProceeding, or (Cd) the Company fails to employ The Corporation shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Corporation and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Corporation shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Corporation or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In If Company is required to pay the event the Company shall be obligated to advance the Expenses for costs of any Proceeding Claim brought against Indemnitee, Company shall have the Company, if deemed appropriate by the Company, shall be entitled right to assume the defense of such Proceeding as provided herein. Such defense Claim, with counsel approved by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following Indemnitee, upon delivery of written notice to Indemnitee of the Company’s election to assume the defense. Notwithstanding the foregoing, however, Company shall not have the right to assume defense in any Claim brought by or in the right of Company or as to which Indemnitee has reasonably concluded that there is a conflict of interest between Indemnitee and Company in the conduct of the defense. After Company gives notice to Indemnnitee that Company intends to assume the defense of such Proceedinga Claim, Indemnitee will have the approval by Indemnitee (which approval shall not be unreasonably withheld) of right to employ separate counsel designated by the Company and the retention of such counsel by the Company, the at his expense. Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel Indemnitee subsequently incurred by Indemnitee incurs with respect to the same Proceeding. If (A) the employment of Claim, unless: · Company previously has authorized Indemnitee to employ separate counsel by at Company’s expense; · Indemnitee reasonably has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be is a conflict of interest between the Indemnitee and Company and Indemnitee in the conduct of any such Indemnitees’ defense, (C) the ; or · Company fails has failed to employ counsel to assume the defense of such Proceeding, Claim. Indemnitee agrees to give Company such information and cooperation as Company may reasonably request in defense of any Claim or (D) after threat of a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expenseClaim. Indemnitee agrees that Company is not obligated to indemnify Indemnitee under this Agreement for any such separate counsel retained by amounts Indemnitee will be a member of pays to settle any approved list of panel counsel under the action or claim without Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselprior written consent. Company agrees not to settle any action or claim in any manner that will impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent.

Assumption of Defense. The Indemnitee shall be entitled to employ his/her own separate counsel and assume the defense of any Proceeding against the Indemnitee, provided the Indemnitee delivers notice to the Company of his/her election to do so within a reasonable time after consummation of such Proceeding. In the event a Proceeding is brought against more than one officer, the decision to assume the defense and employ separate counsel shall be made by a majority vote of such officers – such officers shall select one counsel to represent them collectively unless and only to the extent that a potential conflict is present that causes such joint counsel to conclude that it cannot represent all of the affected officers. Provided such notice is delivered to the Company within a reasonable time after consummation of the Proceeding, all reasonable fees and expenses of such separate counsel shall be obligated borne by the Company in accordance with this Agreement. In the event Indemnitee fails to advance provide the Expenses for any Proceeding against IndemniteeCompany with reasonable notice of his/her election to assume the defense, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided hereinupon the delivery to the Indemnitee of notice of its election to do so. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following After delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companynotice, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If , provided that (i) the Indemnitee shall have the right to employ the Indemnitee’s own counsel in connection with any Proceeding at the Indemnitee’s expense; (ii) if (A) the employment of counsel by the Indemnitee has shall have been previously authorized by the Company, (B) the Indemnitee shall have notified concluded, based on the Board in writing that Indemnitee has reasonably concluded written opinion of Indemnitee’s counsel (such counsel to be approved by the Company, whose approval shall not be unreasonably withheld) that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (C) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such Proceeding, or (D) after a Change then in Control, each such case the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to paid by the terms of Company in accordance with this Agreement. Nothing herein ; and (iii) the Company shall prevent not settle any Proceeding in any manner which would impose any penalty, limitation or unindemnified Expense on the Indemnitee from employing counsel for any such Proceeding at without the Indemnitee’s expenseconsent. Indemnitee agrees that any such separate counsel retained by Indemnitee will The Company shall not be a member entitled to assume Indemnitee’s defense of any approved list of panel counsel under claim brought by the Company’s applicable directors’ and officers’ insurance policy, should Company or as to whether Indemnitee shall have made the applicable policy provide conclusion provided for a panel of approved counselin clause (B) above.

Assumption of Defense. In Upon Wilmington Trust’s becoming aware of the occurrence of an event that results in any loss, liability or expense to any Indemnified Person, Wilmington Trust shall send written notice thereof, referencing this Section 2 (the Company shall be obligated “Claim Notice”) to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to Indemnitor within five (5) business days after Wilmington Trust obtains knowledge thereof. The Indemnitor may assume the defense of such Proceeding as provided herein. Such defense proceeding, with a nationally recognized (or regionally recognized, if local counsel is necessary in such jurisdiction) counsel of its choosing, by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of delivering written notice to Indemnitee of the CompanyIndemnitor’s election to do so to the Indemnified Person (the “Selection Notice”); provided, that, without limiting the generality of subsections (i)-(iii) of this Section 2, such counsel shall not assume the defense of Wilmington Trust if Wilmington Trust objects to the appointment of such Proceedingcounsel within a commercially reasonable time period after its receipt of the Selection Notice. The parties hereto hereby agree that for purposes of the proviso immediately preceding this sentence, a “commercially reasonable time period” shall include a minimum of fifteen (15) business days after Wilmington Trust’s receipt of the approval by Indemnitee (which approval shall not be unreasonably withheld) Selection Notice. After delivery of counsel designated by the Company Selection Notice and the retention of such counsel by the CompanyIndemnitor without objection by Wilmington Trust as provided in this Section 2 (the “Retained Counsel”), the Company will Indemnitor shall not be liable to Indemnitee the Indemnified Person under this Agreement for any fees and or expenses of counsel subsequently incurred by Indemnitee the Indemnified Person with respect to the same Proceeding. If proceeding, provided that if (Ai) the employment of counsel by Indemnitee other than the Retained Counsel has been previously authorized by the CompanyIndemnitor in writing with respect to the loss, liability or expense described in the Claim Notice, (Bii) Indemnitee the Indemnified Person shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company Indemnitor and Indemnitee the Indemnified Person in the conduct of any such defensedefense after providing prior written notice to the Indemnitor of the Indemnified Person’s reasonable conclusion of a conflict of interest and providing the Indemnitor a reasonable opportunity, and the Indemnified Person’s reasonable cooperation, to cure such conflict, if practicable, or (Ciii) the Company fails to employ Indemnitor shall not, in fact, within a commercially reasonable amount of time after its receipt of the Claim Notice, have employed counsel to assume the defense of such Proceedingproceeding, or (D) after a Change in Control, then the employment reasonable fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by IndemniteeIndemnified Person’s counsel shall be subject borne by the Indemnitor in accordance with Section 1. For the avoidance of doubt, the Indemnified Person shall have the right to indemnification and/or advancement pursuant employ their own counsel in any proceeding for which a Claim Notice has been received by the Indemnitor, at the Indemnified Person’s sole cost and expense, in which event the Indemnitor shall have no further obligation or liability to the terms of Indemnified Person under this Agreement. Nothing herein shall prevent Indemnitee from employing counsel Agreement for any fees or expenses of counsel subsequently incurred by the Indemnified Person with respect to such Proceeding at Indemnitee’s expenseproceeding. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.Neither the

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following upon delivery of written notice to Indemnitee of the Company’s its election to assume the defense of such Proceeding, and upon Indemnitee’s approval of counsel designated by the approval by Indemnitee Company (which approval shall not be unreasonably withheld) and retention of such counsel designated by the Company Company. Following delivery of such written notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If ; provided that (Ai) Indemnitee shall have the right to employ his own counsel in any such Proceeding at Indemnitee’s expense; (ii) Indemnitee shall have the right to employ his own counsel in connection with any such Proceeding, at the expense of the Company, if such counsel serves in a review, observer, advice and counseling capacity and does not otherwise materially control or participate in the defense of such Proceeding; and (iii) if (x) the employment of counsel by Indemnitee has been previously authorized by the Company, (By) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense and have notified the Board in writing of such conflict, or (Cz) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, then the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event Except as otherwise provided below, the Company shall be obligated jointly with any other indemnifying party similarly notified may assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to advance the Expenses for any Proceeding against Indemnitee, Indemnitee and the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee (or another party being represented jointly with the Company) in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In Notwithstanding anything to the event contrary under this Agreement, Seller and Purchasers shall cooperate with each other to manage the defense of the legal proceedings identified in Section 5.16(b)(i) to the Disclosure Schedules (the “Existing Actions”) and the Actions that may arise from the patent infringement allegations made against the Company in the letters identified in Section 5.16(b)(ii) to the Disclosure Schedules (the “Prospective Actions”, and together with the Existing Actions, the “Covered Actions”) on behalf of each of the Acquired Companies that is named as a defendant (each, a “Company Defendant”) on the following terms: (i) Seller shall manage the defense of all of the Existing Actions after Closing on behalf of the Company as follows: (A) Seller shall manage the defense in substantially the same manner as the conduct of such defense by the Company prior to Closing; (B) Seller shall have the right, after consulting with Purchasers and the Company in good faith, to continue, or amend, its choice of counsel for the Company and instruct counsel on all matters relating to the Existing Actions on behalf of the Company; (C) Seller shall have the obligation to keep the other parties reasonably advised of the status of each Existing Action on a regular basis; and (D) the Company may participate in any of the Existing Actions at its own expense at any time. (ii) The Company shall assume the defense of all of the Prospective Actions (if any) with the support of Seller as follows: (A) Seller shall offer the Company all necessary support, including giving the Company reasonable access to its records, files and employees, so that the Company Defendant can conduct the defense in an efficient and effective manner; (B) the Company shall have the obligation to keep the other parties reasonably advised of the status of that Prospective Actions on a regular basis; and (C) Seller may participate in any of the Prospective Actions at its own expense at any time. (iii) Seller shall pay the Company (x) 100% of the costs and expenses payable by the Company Defendant to third parties, including but not limited to fees and costs of counsel and expert witnesses, court charges and travel expenses (the “Upfront Costs”), during the course of its defense of each of the Existing Actions; and (y) 66.7% of the Upfront Costs, and the Company shall be obligated to advance solely responsible for the Expenses remaining 33.3% of the Upfront Costs during the course of its defense of each of the Prospective Actions; provided, however, in each case of (x) and (y), Seller will not be responsible for any Proceeding against Indemnitee, Upfront Costs arising from Seller’s participation in any of the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of Covered Actions; (iv) neither Seller (on the Company’s election behalf) nor the Company shall agree to assume any settlement of, or the defense entry of such Proceedingany judgment arising from, any Covered Action without the approval by Indemnitee (prior written consent of the other party, which approval shall not be unreasonably withheld, conditioned or delayed; (v) Seller and the Company shall share the Litigation Losses of counsel designated each Covered Action in accordance with the procedures set forth in Section 5.16(c) as follows: (A) Seller shall be liable for the portion of such Litigation Losses that relates to Business Products that were sold prior to the Closing, and (B) the Company shall be liable for the portion of such Litigation Losses that relates to Business Products that were, or to be, sold after the Closing, including any royalties for future sales of products covered by the settlement, license or similar agreement, or court order (the “Loss Allocation Principles”); for purposes of this Agreement, “Litigation Losses” of a Covered Action includes three components: (1) Upfront Costs; (2) amounts paid or payable to plaintiff in the form of settlement or damage awards, including royalties for past product sales (the “Remedial Payments”); and (3) the discounted present value of all the royalties payable by the Company and Defendant for the retention future sale of such counsel by the Company, the Company will not be liable to Indemnitee products under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of a settlement, license or similar agreement, or court order (the “Royalty Payments”); and (vi) unless Seller is in breach of its obligations under this Agreement. Nothing herein Section 5.16(b) or Section 5.16(d) in connection with that Covered Action, Purchasers shall prevent Indemnitee from employing counsel for not be entitled to assert any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel rights to indemnification under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselSection 7.01 in relation to Losses arising thereunder.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses Expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (Div) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In Promptly after receipt by an indemnitee of notice of any intention or threat to commence an action, suit or proceeding or notice of the event the Company shall be obligated to advance the Expenses for commencement of any Proceeding against Indemniteeaction, suit or proceeding, the Companyindemnitee will, if deemed appropriate by a claim in respect thereof is to be made against the CompanyCorporation, shall promptly notify the Corporation in writing of the same. With respect to any action, suit or proceeding of which the Corporation is so notified, the Corporation shall, subject to the last two sentences of this Section 7.08, be entitled to assume the defense of such Proceeding as provided herein. Such defense by action, suit or proceeding, with counsel reasonably acceptable to the Company may include indemnitee, upon the representation of two or more parties by one attorney or law firm as permitted under delivery to the ethical rules and legal requirements related to joint representations. Following delivery indemnitee of written notice to Indemnitee of the Company’s its election to assume the defense do so. After delivery of such Proceedingnotice, the approval by Indemnitee (which approval shall not be unreasonably withheld) of such counsel designated by the Company indemnitee and the retention of such counsel by the CompanyCorporation, the Company Corporation will not be liable to Indemnitee the indemnitee under this Agreement these Bylaws for any fees and expenses of counsel subsequently incurred fees of separate counsel engaged by Indemnitee the indemnitee with respect to the same Proceeding. If (A) action, suit or proceeding unless the employment of separate counsel by Indemnitee the indemnitee has been previously authorized in writing by the CompanyCorporation, (B) Indemnitee which authorization will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, if the indemnitee, based on the advice of his or her counsel, shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between (with written notice being given to the Company and Indemnitee Corporation setting forth the basis for such conclusion) that, in the conduct of any such defense, there is an actual or potential conflict of interest or position (Cother than such potential conflicts that are objectively immaterial or remote) between the Company fails Corporation and the indemnitee with respect to employ counsel a significant issue, then the Corporation will not be entitled, without the written consent of the indemnitee, to assume such defense. In addition, the Corporation will not be entitled, without the written consent of the indemnitee, to assume the defense of such Proceeding, any claim brought by or (D) after a Change in Control, the employment right of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselCorporation.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may desire, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s " election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ his counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) Counsel employed by the Company initially unacceptable or later become unacceptable to Indemnitee and such unacceptability is reasonable under the then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change ; in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement provided that Indemnitee is otherwise entitled to such indemnification under this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the applicable ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses Expenses of other counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, Company or (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Cii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and Expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees expense or providing the Company with information indicating that there may be a conflict of interest in the conduct of any such separate counsel retained by defense between (A) the Company and Indemnitee or (B) Indemnitee and any other party or parties being jointly represented, in which case the Company will not be a member entitled, without the written consent of Indemnitee, to assume such defense. In addition, the Company will not be entitled, without the written consent of Indemnitee, to assume the defense of any approved list claim brought by or in the right of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Notwithstanding anything in this agreement to the contrary, Indemnitee agrees that shall have the right to employ Indemnitee’s own counsel in connection with any such separate counsel retained by Indemnitee will be a member Proceeding, at the expense of any approved list of panel counsel under the Company’s applicable directors’ , if such counsel serves in a review, observer, advice, and officers’ insurance policycounseling capacity and does not otherwise materially control or participate in the defense of such Proceeding; provided, should however, that Indemnitee must choose his or her own counsel from three options provided to the applicable policy provide for a panel of approved counselIndemnitee by the Company.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may desire, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ his counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) Counsel employed by the Company is initially unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under the then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change ; in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement provided that Indemnitee is otherwise entitled to such indemnification under this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee(a) Except as otherwise provided in Section 14(b) below, the Company, if deemed appropriate by the Companyjointly with any other indemnifying party similarly notified, shall be entitled to may assume the Indemnitee’s defense of such Proceeding as provided hereinin any Indemnifiable Claim. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Losses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Indemnifiable Claim, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee’s own expense unless: (Ai) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bii) Indemnitee shall have notified reasonably concluded, after consultation with counsel selected by the Board in writing that Indemnitee has reasonably concluded Indemnitee, that there may be a conflict of interest between Indemnitee and the Company and Indemnitee (or another party being represented jointly with the Company) in the conduct of any the defense of such defense, Indemnifiable Claim; (Ciii) the Company fails has assumed the defense of more than one (1) current and/or former directors and/or officers, and a majority of such directors and/or officers reasonably object to employ the counsel selected by the Company pursuant to Section 14(c); or (iv) the Company shall not have employed counsel within sixty (60) calendar days to assume the defense of such ProceedingIndemnifiable Claim. (b) The Company shall not be entitled to assume the defense of Indemnitee with respect to any Indemnifiable Claim as to which Indemnitee shall have made the conclusions provided for in Section 14(a)(ii). (c) If the Company has selected counsel to represent Indemnitee and other current and former directors and/or officers of the Company in the defense of a Claim, or and a majority of such persons, including the Indemnitee, reasonably object to such counsel selected by the Company pursuant to this Section 14(a) (Dthe “Objecting Group”), then the Objecting Group shall deliver to the Company a written notice, executed by each member of the Objecting Group, indicating that it has made the conclusion in Section 14(a)(iii) after hereof. The Company, within ten (10) calendar days, shall provide to the Objecting Group a Change in Controllist of law firms, the employment of counsel by Indemnitee has been if any, approved by the Independent CounselCompany or notify the Objecting Group that no such list exists. The Objecting Group shall be permitted to employ one (1) law firm from the approved list provided by the Company to represent the Objecting Group or, if no list is provided within ten (10) calendar days or the Company notifies the Objecting Group that no such list exists, one (1) law firm of their choice, and the Expenses related to work conducted by Indemnitee’s of such counsel shall be subject at the expense of the Company. For the avoidance of doubt, the Company shall not be required to indemnification and/or advancement pursuant bear the expenses of more than one (1) law firm for all members of the Objecting Group. (d) In the event that Indemnitee notifies the Company that he or she has made the conclusion set forth in Section 14(a)(ii), the Company shall be required to indemnify Indemnitee against and advance or reimburse to Indemnitee all Expenses incurred (whether incurred by Indemnitee before or after the delivery of such notice) with respect to such Indemnifiable Claim while any of the conditions set forth in Section 14(a)(ii) are present to the terms fullest extent provided hereunder (including Expenses incurred by Indemnitee with respect to the preparation and delivery of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at notice). (e) If the Company disagrees with Indemnitee’s expenseconclusion under Section 14(a)(ii), the Company shall, within thirty (30) calendar days after the receipt of notice from Indemnitee, appoint Independent Counsel consistent with the procedures specified in Section 5(b) to resolve the dispute. Provided that such Independent Counsel determines that Indemnitee’s conclusion under Section 14(a)(ii) was reasonable, the Company shall further indemnify Indemnitee agrees that against any such separate counsel retained and all Expenses actually and reasonably incurred by Indemnitee will in so cooperating with such Independent Counsel. (f) For the avoidance of doubt, regardless of whether the Company has assumed or is entitled to assume Indemnitee’s defense, the Company shall be a member of entitled to participate in any approved list of panel counsel under Indemnifiable Claim at the Company’s applicable directors’ and officers’ insurance policyown expense. In the event separate counsel is retained by an Indemnitee pursuant to this Section 14, should the applicable policy provide for a panel Company shall cooperate with Indemnitee with respect to the defense of approved counselthe Claim.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, for so long as such counsel is acting on behalf of Indemnitee in the Proceeding, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld, delayed or conditioned) of counsel designated by the Company Company, and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee or separate counsel for Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (Div) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein The Company shall prevent Indemnitee from employing counsel for not be entitled to assume the defense of any such Proceeding at Indemnitee’s expensebrought by or on behalf of the Company. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policypolicies, should the applicable policy policies provide for a panel of approved counsel. Nothing herein shall prevent Indemnitee from employing counsel for any Proceeding at Indemnitee’s own expense.

Assumption of Defense. (a) In the event the Company shall be obligated requested by Indemnitee to advance pay the Expenses for of any Proceeding against IndemniteeProceeding, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by Proceeding, or to participate to the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of extent permissible in such Proceeding, with counsel reasonably acceptable to Indemnitee. Upon assumption of the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated defense by the Company and the retention of such counsel by the Company, the Company will shall not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided, however, that Indemnitee shall have the right to employ separate counsel in such Proceeding at Indemnitee’s sole cost and expense. If Notwithstanding the foregoing, if (Ai) the employment of counsel by the Indemnitee has been previously authorized by the Company, (Bii) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (Diii) after a Change the Company shall not within 45 calendar days of receipt of notice from the Indemnitee in Controlfact have employed counsel reasonably satisfactory to Indemnitee to assume the defense of the Proceeding or otherwise actively pursued the defense of such Proceeding, then in any such event the employment fees and Expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel to defend such Proceeding shall be subject to the indemnification and/or and advancement pursuant to the terms of Expenses provisions of this Agreement. Nothing herein . (b) The Company shall prevent Indemnitee from employing counsel for not settle any such Proceeding at in any manner that would impose any penalty or limitation on or disclosure obligation with respect to the Indemnitee, or otherwise adversely affect the Indemnitee, without the Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselprior written consent.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two (2) or more parties by one (1) attorney or law firm as permitted under the applicable ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of other counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, Company or (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Cii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees expense or providing the Company with information indicating that there may be a conflict of interest in the conduct of any such separate counsel retained defense between (A) the Company and Indemnitee or (B) Indemnitee and any other party or parties being jointly represented, in which case the Company will not be entitled, without the written consent of Indemnitee, to assume such defense and, for the avoidance of doubt, for purposes of determining whether the Company is entitled to assume such defense following receipt from Indemnitee of information indicating that such a conflict of interest may exist, the burden of proof shall be on the Company to establish, by Indemnitee clear and convincing evidence, that a conflict of interest does not exist. In addition, the Company will not be a member entitled, without the written consent of Indemnitee, to assume the defense of any approved list claim brought by or in the right of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may reasonably could be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. As soon as is reasonably practicable after becoming aware of a claim for indemnification under this Agreement, the Indemnified Person shall give written notice to the Fund of such claim (which notice shall specify the facts alleged to constitute the basis for such claim, the representations, warranties, covenants or obligations alleged to have been breached and the amount the Indemnified Person seeks hereunder from the Fund); provided, that the failure of the Indemnified Person to give such notice shall not relieve the Fund of its obligations under this Section 5.11 except to the extent (if any) that the Fund shall have been materially and adversely prejudiced thereby. In the event the Company case any action, suit or proceeding shall be obligated brought against any Indemnified Person with respect to advance any matter for which the Expenses Indemnified Person makes a claim for any Proceeding against Indemniteeindemnification hereunder, except as expressly provided below, the Company, if deemed appropriate by the Company, Fund shall be entitled to assume participate in, and, to the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election extent that it chooses, to assume the defense thereof, with counsel satisfactory to such Indemnified Person and after notice from the Fund to such Indemnified Person of such Proceeding, its election so to assume the defense thereof and the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention Indemnified Person of such counsel by the Companycounsel, the Company will Fund shall not be liable to Indemnitee under this Agreement such Indemnified Person for any legal or other expenses, except as provided below and except for the reasonable costs of investigation, with the extent of such investigation to be agreed upon between the Indemnified Person and the Fund, subsequently incurred by such Indemnified Person in connection with the defense thereof. The Indemnified Person shall have the right to employ counsel in any such action, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to shall be at the same Proceeding. If expense of such Indemnified Person unless (Aa) the employment of counsel by Indemnitee such Indemnified Person at the expense of the Fund has been previously authorized in writing by the CompanyFund, (Bb) Indemnitee the Indemnified Person shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company Fund and Indemnitee the Indemnified Person in the conduct of any the defense of such defense, action (Cin which case the Fund shall not have the right to direct the defense of such action on behalf of the Indemnified Person) or (c) the Company fails to employ Fund shall not have employed counsel to assume the defense of such Proceedingaction within a reasonable time after notice of the commencement thereof, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to at the terms expense of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselFund.

Assumption of Defense. In (a) Except as otherwise provided in this Section 16, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for may, separately or jointly with any Proceeding against Indemniteeother indemnifying party, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided hereinthe Proceeding. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s its election to assume the defense of such a Proceeding, the approval by Indemnitee (which approval Company shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee except as otherwise provided below. Indemnitee shall have the right to employee Indemnitee’s own counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee with respect to the same Proceeding. If unless (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Cii) the Company fails shall not within twenty (20) days of providing notice to employ Indemnitee of its election to assume the defense of a Proceeding in fact have engaged counsel to assume the defense of such a Proceeding, or (Diii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s qualified legal counsel shall be subject have determined, reasonably and in good faith, that there is a material conflict of interest between the Indemnitee, on the one hand, and the Company or the counsel the Company has retained or proposed to indemnification and/or advancement pursuant retain to represent the Indemnitee, on the other hand, relating to the terms conduct or defense of the Proceeding (or that there is a significant and reasonable likelihood of such a material conflict of interest imminently arising), and the Company is promptly notified of such determination in writing, which writing shall set forth the bases for such determination in reasonable detail. (b) The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company, or as to which Indemnitee’s qualified legal counsel shall have made the determination provided for in subparagraph (a)(iii) above. (c) If the Indemnitee fails to provide the Company written notice of a Proceeding in accordance with Section 15 of this Agreement. Nothing herein Agreement within a reasonable time after the Indemnitee is served with any summons, citation, subpoena, complaint, petition, indictment, information, or other document relating to the commencement or threatened commencement of any Proceeding, then the Company shall prevent have no obligation to indemnify or advance Expenses to Indemnitee from employing counsel for any such Proceeding at as to Expenses incurred prior to Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member notification of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. (a) In the event the Company shall be obligated is requested by Indemnitee to advance pay the Expenses for of any Proceeding against IndemniteeProceeding, the Company, if deemed appropriate by the Companyappropriate, shall will be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such that Proceeding, or to participate to the approval extent permissible in that Proceeding, with counsel approved by Indemnitee (Indemnitee, which approval shall may not be unreasonably withheld) withheld or delayed. Upon assumption of counsel designated the defense by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided, that Indemnitee will have the right to employ separate counsel in that Proceeding at Indemnitee’s sole cost and expense. If (A) After the employment Company has assumed the defense of a Proceeding, Indemnitee will be entitled to, at Indemnitee’s own expense, engage counsel for the purpose of monitoring the defense being provided by Indemnitee has been previously authorized counsel retained by the Company, and the Company must direct that counsel to cooperate with and provide requested information to Indemnitee’s monitoring counsel. Notwithstanding the foregoing, if (Bi) Indemnitee shall have notified Indemnitee’s counsel delivers a written notice to the Board in writing Company stating that Indemnitee such counsel has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense in the Proceeding, (Cii) the Company fails to employ has not, in fact, employed counsel to assume or otherwise actively pursued the defense of such the Proceeding within a reasonable time, or thereafter reasonably maintained the defense of the Proceeding, (iii) there has been a Change in Control (as defined below), or (Div) after a Change in Control, the employment of Indemnitee reasonably concludes that counsel by Indemnitee has been approved engaged by the Independent CounselCompany on behalf of Indemnitee may not adequately represent Indemnitee, then in any such event the Expenses related fees and expenses of Indemnitee's counsel to work conducted by Indemnitee’s counsel shall defend the Proceeding must be at the expense of the Company and subject to the indemnification and/or and advancement pursuant to the terms of expenses provisions of this Agreement. Nothing herein shall prevent Indemnitee from employing Provided, however, that in the event there are other defendants in a Proceeding who are entitled to counsel other than counsel engaged by the Company, the Company will only be obligated to pay the fees and expenses of one (1) counsel for any all those defendants, including Indemnitee, unless Indemnitee's counsel delivers a written notice to the Company stating that such Proceeding at Indemnitee’s expense. Indemnitee agrees counsel has reasonably concluded that any such separate counsel retained by Indemnitee will there may be a member conflict of interest that would prevent one (1) counsel from representing all such defendants, including Indemnitee. (b) For purposes of this Agreement, a “Change in Control” is deemed to have occurred if (i) any approved list “person” (as such term is used in Sections 13(d) and 14(d) of panel counsel the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, (A) who is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing ten percent (10%) or more of the combined voting power of the Company's then outstanding Voting Securities (as defined below), increases his, her or its beneficial ownership of such securities by five percent (5%) or more over the percentage so owned by such person, or (B) becomes the “beneficial owner” (as defined in Rule 13d3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than twenty percent (20%) of the total voting power represented by the Company’s applicable then outstanding Voting Securities, (ii) during any period of two (2) consecutive years, individuals who at the beginning of that period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the Company merges or consolidates with any other corporation other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity, or its ultimate parent) at least sixty percent (60%) of the total voting power represented by the Voting Securities, as defined below, of the Company or such surviving entity, or its ultimate parent, outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in one (1) transaction or a series of transactions) all or substantially all of the Company's assets, (iv) the Company commences any case, action or proceeding before any court or governmental body (or a third party commences any such proceeding that remains undismissed by or consented to within sixty (60) days) relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (v) the Company commences any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors. (c) For purposes of this Agreement, “Voting Securities” means any securities of the Company that vote generally in the election of directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee(a) Except as otherwise provided in Section 14(b) below, the applicable Quintiles Company, if deemed appropriate by jointly with any other indemnifying party similarly notified, may assume Indemnitee’s defense in any Indemnifiable Claim, with counsel reasonably satisfactory to Indemnitee and the applicable Quintiles Company, shall be entitled to assume . After notice from the defense of such Proceeding as provided herein. Such defense by the applicable Quintiles Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the such Quintiles Company’s election to assume the defense of such Proceedingdefense, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company Quintiles Companies will not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Indemnifiable Claim, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If applicable Quintiles Company of its assumption of the defense thereof shall be at Indemnitee’s own expense unless: (Ai) the The employment of counsel by Indemnitee has been previously authorized by the a Quintiles Company, ; or (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that (A) counsel employed by a Quintiles Company initially is unacceptable or later becomes unacceptable to Indemnitee and such Quintiles Company has failed to employ reasonably acceptable counsel in a reasonably timely manner; (B) there may be a conflict of interest between the Indemnitee and a Quintiles Company and Indemnitee (or another party being represented jointly with a Quintiles Company) in the conduct of any the defense of such defense, Indemnifiable Claim; or (C) the applicable Quintiles Company fails to employ shall not have employed counsel to assume the defense of such Proceeding, Indemnifiable Claim within a reasonable time following receipt of a written request. (b) A Quintiles Company shall not be entitled to assume the defense of Indemnitee with respect to any Indemnifiable Claim as to which Indemnitee shall have made either of the conclusions provided for in Section 14(a)(ii)(A) or Section 14(a)(ii)(B). (Dc) after In the event that Indemnitee notifies a Change Quintiles Company that he or she has made any of the conclusions set forth in ControlSection 14(a)(ii), the employment of counsel applicable Quintiles Company shall be required to indemnify Indemnitee against and advance or reimburse to Indemnitee all Expenses incurred (whether incurred by Indemnitee has been approved before or after the delivery of such notice) with respect to such Indemnifiable Claim while any of the conditions set forth in Section 14(a)(ii) are present to the fullest extent provided hereunder (including Expenses incurred by Indemnitee with respect to the preparation and delivery of such notice). (d) If the Quintiles Company disagrees with Indemnitee’s conclusion under Section 14(a)(ii), such Quintiles Company shall, within 30 days after the receipt of notice from Indemnitee, appoint Independent Counsel consistent with the procedures specified in Section 5(b) to resolve the dispute. Provided that Independent Counsel determines that Indemnitee’s conclusion under Section 14(a)(ii) was reasonable, the applicable Quintiles Company shall further indemnify Indemnitee against any and all Expenses actually and reasonably incurred by Indemnitee in so cooperating with such Independent Counsel. (e) For the avoidance of doubt, regardless of whether a Quintiles Company has assumed or is entitled to assume Indemnitee’s defense, the Expenses related to work conducted by Indemnitee’s counsel Quintiles Companies shall be subject entitled to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for participate in any such Proceeding Indemnifiable Claim at Indemnitee’s their own expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In Except as otherwise provided below, to the event the Company shall be obligated to advance the Expenses for extent that it may wish, TXEN jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume the Indemnitee's defense of such Proceeding as provided hereinin any Proceeding, with counsel mutually satisfactory to Indemnitee and TXEN. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written After notice from TXEN to Indemnitee of the Company’s TXEN's election to assume the defense of such Proceedingdefense, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company TXEN will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from TXEN of its assumption of the same Proceeding. If defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, TXEN; (Bb) Counsel employed by TXEN initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company Indemnitee and Indemnitee TXEN in the conduct of any the defense of such defense, Proceeding; or (Cd) the Company fails to employ TXEN shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, . In each of these cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of TXEN and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein TXEN shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of TXEN or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Notwithstanding anything in this Agreement to the contrary, Indemnitee agrees that shall have the right to employ Indemnitee’s own counsel in connection with any such separate counsel retained by Indemnitee will be a member Proceeding, at the expense of any approved list of panel counsel under the Company’s applicable directors’ , if such counsel serves in a review, observer, advice, and officers’ insurance policycounseling capacity and does not otherwise materially control or participate in the defense of such Proceeding; provided, should however, that Indemnitee must choose his or her own counsel from three options provided to the applicable policy provide for a panel of approved counselIndemnitee by the Company.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against IndemniteeExcept as otherwise provided below, the CompanyCorporation jointly with any other indemnifying party similarly notified may assume Indemnitee's defense in any Proceeding, if deemed appropriate by with counsel mutually satisfactory to Indemnitee and the Company, shall be entitled to assume Corporation. After notice from the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice Corporation to Indemnitee of the Company’s Corporation's election to assume the defense of such Proceedingdefense, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company Corporation will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Corporation of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, Corporation; (Bb) Counsel employed by the Corporation initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee Corporation (or another party being represented jointly with the Corporation) in the conduct of any the defense of such defense, Proceeding; or (Cd) the Company fails to employ The Corporation shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Corporation and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Corporation shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Corporation or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee’s defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee’s expense unless: (Aa) the employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or . In each of the cases set forth in items (Da) after a Change in Controlthrough (d) above, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have reached either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A1) the employment of counsel by Indemnitee has been previously authorized by the Company, (B2) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C3) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s 's counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s 's expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event Except as otherwise provided below, the Company shall be obligated jointly with any other indemnifying party similarly notified, may assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to advance the Expenses for any Proceeding against Indemnitee, Indemnitee and the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, : (Bb) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee (or another party being represented jointly with the Company) in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld, delayed, or conditioned) of counsel designated by the Company Company, and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (Ai) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee or separate counsel for Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, or (Div) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, policies should the applicable policy policies provide for a panel of approved counsel. Nothing herein shall prevent Indemnitee from employing counsel for any Proceeding at Indemnitee’s own expense.

Assumption of Defense. In the event the Company shall be is obligated under this Agreement to advance the or bear any Expenses for any Proceeding against the Indemnitee, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense Proceeding, with counsel approved by the Company may include Indemnitee, upon delivery to the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery Indemnitee of written notice of its election to Indemnitee do so; provided, however, that the Company delivers such written notice within fifteen (15) days following the receipt of notice of any such Proceeding under Section C.1 (“Notice and Cooperation By the Indemnitee”). After delivery of such notice by the Company’s election to assume the defense , approval of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If , unless (Ai) the employment of counsel by the Indemnitee has been previously authorized by the Company, (Bii) the Indemnitee shall have notified reasonably concluded, based on written advice of independent counsel (whose expenses in this regard will be paid by the Board in writing that Indemnitee has reasonably concluded Company), that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, (Ciii) the Indemnitee shall have reasonably concluded that counsel selected by the Company may not be adequately representing the Indemnitee, (iv) the Company fails ceases or terminates the employment of such counsel with respect to employ counsel to assume the defense of such Proceeding, or (Dv) after the Proceeding involves the Company or any of its subsidiaries or VIEs as a Change co-defendant or a potential co-defendant or (without limitation of paragraph (ii) of this Section C.4 (“Assumption of Defense”)) there is otherwise a reasonable likelihood of conflict between the interests of the Indemnitee and (as applicable) the Company or any of its subsidiaries or VIEs (including having regard to the types and nature of orders or penalties that may respectively be made or imposed on the Indemnitee and (as applicable) the Company or any of its subsidiaries or VIEs), in Control, any of which events the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject at the expense of the Company. At all times, the Indemnitee shall have the right to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing employ counsel for in any such Proceeding at the Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance pay the Expenses for expenses of any Proceeding proceeding against or involving the Indemnitee, the Company, if deemed appropriate by the Companyappropriate, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense proceeding, with counsel approved by the Company may include Indemnitee, upon the representation of two or more parties by one attorney or law firm as permitted under delivery to the ethical rules and legal requirements related to joint representations. Following delivery Indemnitee of written notice to Indemnitee of the Company’s its election to assume the defense do so. After delivery of such Proceedingnotice, the approval by Indemnitee (which approval shall not be unreasonably withheld) of such counsel designated by the Company Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If proceeding, provided that: (Ai) the Indemnitee shall have the right to employ his or her counsel in such proceeding at the Indemnitee’s expense; and (ii) if (a) the employment of counsel by the Indemnitee has been previously authorized by the Company, (Bb) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (Cc) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such Proceeding, or (D) after a Change in Controlproceeding, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject at the expense of the Company. The Company shall not, without the prior written consent of the Indemnitee, effect any settlement of any threatened or pending action, suit or proceeding to indemnification and/or advancement pursuant to which the terms Indemnitee is, or could have been, a party unless such settlement solely involves the payment of this Agreement. Nothing herein shall prevent money and includes a complete and unconditional release of the Indemnitee from employing counsel for all liability on any claims that are the subject matter of such Proceeding at action, suit or proceeding. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement. The Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of the Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee Ixxxxxxxxx has been previously authorized by the Company, (B) Indemnitee shall have notified the Board and the Company’s Chief Legal Officer in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment of counsel by Indemnitee Ixxxxxxxxx has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. The Indemnitee shall be entitled to employ his/her own separate counsel and assume the defense of any Proceeding against the Indemnitee, provided the Indemnitee delivers notice to the Company of his/her election to do so within a reasonable time after consummation of such Proceeding. In the event a Proceeding is brought against more than one director, the decision to assume the defense and employ separate counsel shall be made by a majority vote of such directors – such directors shall select one counsel to represent them collectively unless and only to the extent that a potential conflict is present that causes such joint counsel to conclude that it cannot represent all of the affected directors. Provided such notice is delivered to the Company within a reasonable time after consummation of the Proceeding, all reasonable fees and expenses of such separate counsel shall be obligated borne by the Company in accordance with this Agreement. In the event Indemnitee fails to advance provide the Expenses for any Proceeding against IndemniteeCompany with reasonable notice of his/her election to assume the defense, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided hereinupon the delivery to the Indemnitee of notice of its election to do so. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following After delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companynotice, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If , provided that (i) the Indemnitee shall have the right to employ the Indemnitee’s own counsel in connection with any Proceeding at the Indemnitee’s expense; (ii) if (A) the employment of counsel by the Indemnitee has shall have been previously authorized by the Company, (B) the Indemnitee shall have notified concluded, based on the Board in writing that Indemnitee has reasonably concluded written opinion of Indemnitee’s counsel (such counsel to be approved by the Company, whose approval shall not be unreasonably withheld) that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (C) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such Proceeding, or (D) after a Change then in Control, each such case the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to paid by the terms of Company in accordance with this Agreement. Nothing herein ; and (iii) the Company shall prevent not settle any Proceeding in any manner which would impose any penalty, limitation or unindemnified Expense on the Indemnitee from employing counsel for any such Proceeding at without the Indemnitee’s expenseconsent. Indemnitee agrees that any such separate counsel retained by Indemnitee will The Company shall not be a member entitled to assume Indemnitee’s defense of any approved list of panel counsel under claim brought by the Company’s applicable directors’ and officers’ insurance policy, should Company or as to whether Indemnitee shall have made the applicable policy provide conclusion provided for a panel of approved counselin clause (B) above.

Assumption of Defense. In the event the Company shall be obligated hereunder to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheldwithheld or delayed) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of separate counsel subsequently incurred employed by or on behalf of Indemnitee with respect to the same Proceeding. If Notwithstanding the foregoing, if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or (D) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, then the Expenses related to work conducted by Indemnitee’s separate counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing separate counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event the Company shall be obligated to advance pay the Expenses for expenses of the Indemnitee with respect to any Proceeding against Indemniteeproceeding, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by proceeding, with counsel of its choosing, upon the Company may include delivery to the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery Indemnitee of written notice of its election to Indemnitee do so, which written notice shall be delivered within ten (10) calendar days after receipt of written notice of the Company’s election proceeding pursuant to assume the defense Section 6(a) above. After delivery of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companynotice, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel which are subsequently incurred by the Indemnitee with respect to the same Proceeding. If proceeding; provided, however, that the Indemnitee shall have the right to employ Indemnitee’s counsel in any such proceeding at the Indemnitee’s expense; and provided further, that if (Ai) the employment of counsel by the Indemnitee has been previously authorized by the Company, or (Bii) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defensedefense or that the Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with the position of other defendants in such proceeding, or (Ciii) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such Proceedingproceeding in a timely manner, or (D) after a Change then, in Controlany such case, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject at the expense of the Company. In addition, if the Company fails to indemnification and/or advancement comply with any of its obligations under this Agreement or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any action, suit or proceeding to deny or to recover from the Indemnitee the benefits intended to be provided to the Indemnitee hereunder, the Indemnitee shall have the right to retain counsel of Indemnitee’s choice, at the expense of the Company, to represent the Indemnitee in connection with any such matter. The Company shall not, without the prior written consent of Indemnitee, consent to the entry of any judgment against the Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of the Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of the Indemnitee from all liability in respect of such Proceeding, which release shall be in form and substance reasonably satisfactory to the Indemnitee. This Section 6(c) shall not apply to a Proceeding brought by the Indemnitee under Section 7 below or pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselSection 8(a) below.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change ; in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the The employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bb) Counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the The Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or (D) after a Change in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clause (b) or (c) above.

Assumption of Defense. In the event If the Company shall be obligated to advance pay Expenses arising in connection with any Claim against the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by Indemnitee may in its sole discretion (but shall not be obligated to) allow the Company, shall be entitled Company to assume the defense of such Proceeding as provided herein. Such defense Claim, with counsel approved by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which whose approval shall not be unreasonably withheld) ), upon the delivery to the Company of notice of Indemnitee's election to so tender the defense of such Claim. After delivery of such notice, approval of such counsel designated by the Company Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If Claim; provided that in any such event (i) the Indemnitee shall have the right to employ the Indemnitee's own counsel in connection with any Claim at the Indemnitee's expense; (ii) if (A) the employment of counsel by the Indemnitee has shall have been previously authorized by the Company, (B) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (C) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such ProceedingClaim, or (D) after a Change in Control, each such case the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s 's counsel shall be subject paid by the Company, it being agreed and understood that the Company shall only be required to indemnification and/or advancement pursuant to pay the terms fees and expenses of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such one separate counsel retained by (plus, if necessary, one local counsel); and (iii) the Company shall not settle any Claim in any manner which would impose any penalty, limitation or unindemnified Expense on the Indemnitee will be a member of any approved list of panel counsel under without the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselIndemnitee's consent.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against IndemniteeExcept as otherwise provided below, the CompanyCorporation jointly with any other indemnifying party similarly notified may assume Indemnitee’s defense in any Proceeding, if deemed appropriate by with counsel mutually satisfactory to Indemnitee and the Company, shall be entitled to assume Corporation. After notice from the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice Corporation to Indemnitee of the CompanyCorporation’s election to assume the defense of such Proceedingdefense, the approval by Indemnitee (which approval Corporation shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Corporation of its assumption of the defense thereof shall be at Indemnitee’s expense unless: (Aa) the employment of counsel by Indemnitee has been previously is authorized by the Company, Corporation, (Bb) counsel employed by the Corporation initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances, (c) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded concludes that there may be is a conflict of interest between Indemnitee and the Company and Indemnitee Corporation (or another party being represented jointly with the Corporation) in the conduct of any such defense, (C) the Company fails to employ counsel to assume the defense of such Proceeding, or or (Dd) after a Change the Corporation does not employ counsel promptly to assume the defense of the Proceeding, in Control, each of which cases the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Corporation and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Corporation shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Corporation or as to which Indemnitee shall have made either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.

Assumption of Defense. In the event the Company (i) shall be obligated to advance the Expenses for any Proceeding against IndemniteeIndemnitee by a third party and (ii) acknowledges the Company’s obligation to indemnify the Indemnitee with respect to such Proceeding (subject to the terms of this Agreement), the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations, subject to exceptions set forth below in the event of a potential conflict of interest. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding and the Company’s acknowledgment of its indemnification obligation with respect to such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses Expenses of separate counsel subsequently incurred by Indemnitee with respect to the same ProceedingProceeding so long as such Proceeding is diligently defended, as reasonably determined by Indemnitee. For the avoidance of doubt, but not by way of limitation, a potential conflict of interest shall be deemed a reasonable basis for the Indemnitee to withhold consent under this Section 5.02. If (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company (or any other co-clients as provided above) and Indemnitee in the conduct of any such defense, or that there may be one or more legal defenses available to Indemnitee that are different from or additional to those available to other persons, (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, Proceeding or (Div) after a Change in Controlof Control has occurred, the employment fees and Expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s own counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s own expense. Indemnitee agrees The Company shall not settle any Proceeding in any manner that would impose any such separate counsel retained by Indemnitee will expense, penalty or limitation on Indemnitee, or that would contain any language that could reasonably be a member viewed as an acknowledgment of any approved list of panel counsel under the Companywrongdoing on Indemnitee’s applicable directors’ and officers’ insurance policypart or otherwise detrimental to Indemnitee’s reputation, should the applicable policy provide for a panel of approved counselwithout Indemnitee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

Assumption of Defense. In the event the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding as provided herein. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If If: (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bii) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, ; (Ciii) the Company fails to employ counsel to assume the defense of such Proceeding, ; or (Div) after a Change in Control, the employment Company is not financially or legally able to perform its indemnification obligations; then the fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject to indemnification and/or advancement pursuant to the terms of this Agreement. Nothing herein shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel.

Assumption of Defense. In the event If the Company shall be obligated to advance pay Expenses arising in connection with any Claim against the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, Company shall be entitled to assume the defense of such Proceeding as provided herein. Such defense Claim, with counsel approved by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which whose approval shall not be unreasonably withheld) ), upon the delivery to the Indemnitee of notice of its election to do so. After delivery of such notice, approval of such counsel designated by the Company Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by the Indemnitee with respect to the same Proceeding. If Claim; provided that (i) the Indemnitee shall have the right to employ the Indemnitee’s own counsel in connection with any Claim at the Indemnitee’s expense; (ii) if (A) the employment of counsel by the Indemnitee has shall have been previously authorized by the Company, (B) the Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (C) the Company fails to employ shall not, in fact, have employed counsel to assume the defense of such ProceedingClaim, or (D) after a Change in Control, each such case the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be subject paid by the Company, it being agreed and understood that the Company shall only be required to indemnification and/or advancement pursuant to pay the terms fees and expenses of this Agreement. Nothing herein one separate counsel (including local counsel); and (iii) the Company shall prevent not settle any Claim in any manner which would impose any penalty, limitation or unindemnified Expense on the Indemnitee from employing counsel for any such Proceeding at without the Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselconsent.

Assumption of Defense. In Except as otherwise provided below, to the event extent that it may wish, the Company shall be obligated to advance the Expenses for jointly with any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall other indemnifying party similarly notified will be entitled to assume Indemnitee's defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the defense of such Proceeding as provided hereinCompany. Such defense by After notice from the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s 's election so to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Companydefense, the Company will not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and expenses of such counsel subsequently incurred by Indemnitee with respect to after notice from the same Proceeding. If Company of its assumption of the defense thereof shall be at Indemnitee's expense unless: (Aa) the employment of counsel by Indemnitee has been previously authorized bx xxx Company; (b) counsel employed by the Company, Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances; (Bc) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct of any the defense of such defense, Proceeding; or (Cd) the Company fails to employ shall not have employed counsel promptly to assume the defense of such Proceeding, or . In each of the cases set forth in items (Da) after a Change in Controlthrough (d) above, the employment fees and expenses of counsel by Indemnitee has been approved by the Independent Counsel, the Expenses related to work conducted by Indemnitee’s counsel shall be at the expense of the Company and subject to indemnification and/or advancement payment pursuant to the terms of this Agreement. Nothing herein The Company shall prevent not be entitled to assume the defense of Indemnitee from employing counsel in any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have reached either of the conclusions provided for any such Proceeding at Indemnitee’s expense. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counselin clauses (b) or (c) above.