Common use of Conduct of Indemnification Proceedings Clause in Contracts

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) shall be brought or asserted against any indemnified party hereunder in respect of which indemnity may be sought from an indemnifying party hereunder, such indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If In case any action action, claim or proceeding (including any governmental investigation) shall be brought or asserted against any Person entitled to indemnification hereunder, such indemnified party hereunder in respect of which indemnity may be sought from an shall promptly notify each indemnifying party hereunderin writing, and such indemnifying party shall assume the defense thereof, including the employment of one counsel reasonably satisfactory to such indemnified party, party and shall assume the payment of all expensesfees and expenses incurred in connection with the defense thereof. Such The failure to so notify such indemnifying party shall relieve such indemnifying party of its indemnification obligations to such indemnified party to the extent that such failure to notify materially prejudiced such indemnifying party but not from any liability that it or they may have to the indemnified party for contribution or otherwise. Each indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such each indemnified party unless unless: (i) the such indemnifying party has agreed to pay such fees and expenses, ; (ii) the such indemnifying party shall have has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, ; or (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party or an Affiliate or Controlling person of such indemnifying party, and such indemnified party shall have been advised in writing by counsel that either (x) there may be one or more legal defenses available to such indemnified party it which are different from or additional in addition to those available to the such indemnifying party or such Affiliate or Controlling person or (in which case, y) a conflict of interest may exist if such counsel represents such indemnified party notifies the and such indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified partyits Affiliate or Controlling person; it being understoodprovided, however, that the such indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable responsible hereunder for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for such indemnified party), which firm counsel shall be designated in writing by such indemnified party and reasonably satisfactory to or, in the indemnifying party)event that such indemnified party is a Holder Indemnified Party, by the Holders of a majority of the Registrable Securities included in the subject Registration Statement. The No indemnifying party shall not be liable for any settlement effected without its written consent (which consent may not be unreasonably delayed or withheld). Each indemnifying party agrees that it will not, without the indemnified party’s prior written consent, consent to entry of any such judgment or settle or compromise any pending or threatened claim, action or proceeding erected without its written consentin respect of which indemnification or contribution may be sought hereunder unless the foregoing contains an unconditional release, but if settled with its written consentin form and substance reasonably satisfactory to the indemnified parties, or if there is a final judgment for of the plaintiff in indemnified parties from all liability and obligation arising therefrom. The indemnifying party’s liability to any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against hereunder shall not be extinguished solely because any loss or liability (other indemnified party is not entitled to the extent stated above) by reason of such settlement or judgmentindemnity hereunder.

Conduct of Indemnification Proceedings. If any action or ------------------------------------------ proceeding (including any governmental investigationinvestigation or inquiry) shall be brought or any claim shall be asserted against any person entitled to indemnity hereunder (an "indemnified party"), such indemnified party hereunder shall promptly notify the party from which such indemnity is sought (the "indemnifying party") in respect of which indemnity may be sought from an indemnifying party hereunderwriting, such and the indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such the indemnified party, party and shall assume the payment of all expensesfees and expenses incurred in connection with the defense thereof. Such All such fees and expenses (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) incurred by the indemnified party, shall be paid to the indemnified party, as incurred, within 20 days of written notice thereof to the indemnifying party; provided, however, that if, in accordance with this Section 6, the ------------------ indemnifying party is not liable to the indemnified party, such fees and expenses shall be returned promptly to the indemnifying party. Any such indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (ia) the indemnifying party has agreed to pay such fees and expenses, (iib) the indemnifying party shall have failed promptly to assume the defense of such action action, claim or proceeding and to employ counsel reasonably satisfactory to the indemnified party in any such indemnified partyaction, claim or proceeding, or (iiic) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party it which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action action, claim or proceeding on behalf of such indemnified party; , it being understood, however, that the indemnifying party shall not, in connection with any one such action action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all such indemnified partyparties, which firm shall be designated unless in writing by the opinion of counsel for such indemnified party a conflict of interest may exist between such indemnified party and reasonably satisfactory any other of such indemnified parties with respect to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consentaction, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action claim or proceeding, in which event the indemnifying party shall indemnify be obligated to pay the fees and hold harmless expenses of such additional counsel or counsels). No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the release of such indemnified party from and against all liability in respect to such claim or litigation without the written consent (which consent will not be unreasonably withheld) of the indemnified party. No indemnified party shall consent to entry of any loss judgment or liability enter into any set-tlement without the written consent (to which consent will not be unreasonably withheld) of the extent stated above) by reason of such settlement indemnifying party from which indemnity or judgmentcontribution is sought.

Conduct of Indemnification Proceedings. If (i) Each indemnified party shall give reasonably prompt notice to each indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from hereunder, but failure to so notify an indemnifying party hereunderparty (A) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 4.1(a) or 4.1(b) above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the (B) shall not, in any event, relieve the indemnifying party shall from any obligations to any indemnified party other than the indemnification obligation provided under Section 4.1(a) or 4.1(b) above. (ii) If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action or proceeding at such indemnifying party's own expense with counsel chosen by the indemnifying party and to participate approved by the indemnified parties defendant in the defense thereofsuch action or proceeding, but the fees and expenses of such counsel which approval shall not be at the expenses of unreasonably withheld; provided, however, that, if such indemnified party unless (i) or parties reasonably determine that a conflict of interest exists where it is advisable for such indemnified party or parties to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to them which are different from or in addition to those available to the indemnifying party has agreed to pay such fees and expensesparty, (ii) then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party or parties shall be entitled to one separate counsel at the indemnifying party's or parties' expense. (A) If an indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to Section 4.1(c), such indemnifying party's counsel shall be entitled to conduct such indemnifying party's defense, and employ counsel reasonably satisfactory for the indemnified party or parties shall be entitled to conduct the defense of such indemnified partyparty or parties, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding as efficiently as possible. (including any impleaded partiesB) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the If an indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in Section 4.1(c), the indemnifying party or parties will pay the reasonable fees and expenses of counsel for the indemnified party or parties as incurred. (C) In such indemnified party; it being understoodevent, however, that the no indemnifying party shall notwill be liable for any settlement effected without the written consent of such indemnifying party, in connection with any one which consent may not be unreasonably withheld or delayed. (iv) If an indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesaccordance with this Section 4(c), be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified parties incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If Each Indemnified Party shall give reasonably prompt notice to each indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from hereunder, but failure to so notify an indemnifying party hereunder, such shall not relieve it from any liability that it may have under this indemnity agreement except to the extent that the indemnifying party shall is actually prejudiced by such failure to give notice. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of or proceeding at such indemnifying party’s own expense with counsel shall be at the expenses of such indemnified party unless (i) chosen by the indemnifying party has agreed and approved by the Indemnified Party or parties in such action or proceeding, which approval shall not be unreasonably withheld; provided, however, that if such Indemnified Party or parties reasonably determines that a conflict of interest exists where it is advisable for such Indemnified Party or parties to pay such fees and expensesbe represented by separate counsel or that, (ii) upon advice of counsel, there may be legal defenses available to them that are different from or in addition to those available to the indemnifying party, then the indemnifying party shall have failed not be entitled to assume such defense and the Indemnified Party or parties shall be entitled to one separate counsel at the indemnifying party’s expense. If an indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to the preceding sentence, such indemnifying party’s counsel shall be entitled to conduct such indemnifying party’s defense, and employ counsel reasonably satisfactory for the Indemnified Party or parties shall be entitled to conduct the defense of such indemnified partyIndemnified Party or parties, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the as efficiently as possible. If an indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, the indemnifying party or parties will pay the reasonable fees and expenses of counsel for the Indemnified Party or Parties. In such indemnified party; it being understoodevent, however, that the no indemnifying party shall notwill be liable for any settlement effected without the written consent of such indemnifying party. No indemnifying party shall, without the consent of the Indemnified Party, consent to entry of any judgment or enter into a settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in connection with any one respect of such claim or litigation. If an indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesaccordance with this paragraph, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment fees and expenses for counsel for the plaintiff Indemnified Parties incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If In case any action action, claim or proceeding (including any governmental investigation) shall be brought or asserted against any Person entitled to indemnification hereunder, such indemnified party hereunder in respect of which indemnity may be sought from an shall promptly notify each indemnifying party hereunderin writing, and such indemnifying party shall assume the defense thereof, including the employment of one counsel reasonably satisfactory to such indemnified party, party and shall assume the payment of all expensesfees and expenses incurred in connection with the defense thereof. Such The failure to so notify such indemnifying party shall relieve such indemnifying party of its indemnification obligations to such indemnified party to the extent that such failure to notify materially prejudiced such indemnifying party but not from any liability that it or they may have to the indemnified party for contribution or otherwise. Each indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such each indemnified party unless unless: (i) the such indemnifying party has agreed to pay such fees and expenses, ; (ii) the such indemnifying party shall have has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, ; or (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party or an Affiliate or controlling person of such indemnifying party, and such indemnified party shall have been advised in writing by counsel that either (x) there may be one or more legal defenses available to such indemnified party it which are different from or additional in addition to those available to the such indemnifying party or such Affiliate or controlling person or (in which case, y) a conflict of interest may exist if such counsel represents such indemnified party notifies the and such indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified partyits Affiliate or controlling person; it being understoodprovided, however, that the such indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable responsible hereunder for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for such indemnified party), which firm counsel shall be designated in writing by such indemnified party and reasonably satisfactory to or, in the indemnifying party)event that such indemnified party is a Holder Indemnified Party, by the Holders of a majority of the Registrable Securities included in the subject Registration Statement. The No indemnifying party shall not be liable for any settlement effected without its written consent (which consent may not be unreasonably delayed or withheld). Each indemnifying party agrees that it will not, without the indemnified party’s prior written consent, consent to entry of any such judgment or settle or compromise any pending or threatened claim, action or proceeding erected without its written consentin respect of which indemnification or contribution may be sought hereunder unless the foregoing contains an unconditional release, but if settled with its written consentin form and substance reasonably satisfactory to the indemnified parties, or if there is a final judgment for of the plaintiff in indemnified parties from all liability and obligation arising therefrom. The indemnifying party’s liability to any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against hereunder shall not be extinguished solely because any loss or liability (other indemnified party is not entitled to the extent stated above) by reason of such settlement or judgmentindemnity hereunder.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any entitled to indemnity hereunder (an "indemnified party"), such indemnified party hereunder in shall give prompt notice to the party from which such indemnity is sought (the "indemnifying party") of any claim or of the commencement of any proceeding with respect of to which indemnity may be sought from an indemnifying such indemnified party hereunderseeks indemnification or contribution pursuant hereto; provided, such however, that the delay or failure to so notify the indemnifying party shall assume not relieve the indemnifying party from any obligation or liability except to the extent that the indemnifying party has been prejudiced by such delay or failure. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such claim or proceeding, to assume, at the indemnifying party's expense, the defense thereofof any such claim or proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that (i) an indemnified party shall have the right to employ separate counsel in any such action claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless unless: (i1) the indemnifying party has agreed agrees to pay such fees and expenses, ; (ii2) the indemnifying party shall have failed fails promptly to assume the defense of such action claim or proceeding and or fails to employ counsel reasonably satisfactory to such indemnified party, ; or (iii3) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which it that are different from or additional to inconsistent with those available to the indemnifying party or that a conflict of interest is likely to exist among such indemnified party and any other indemnified parties (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, case the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party); it being understoodand (ii) subject to clause (3) above, however, that the indemnifying party shall not, in connection with any one such action claim or proceeding or separate but substantially similar or related actions claims or proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all of the indemnified parties, or for fees and expenses that are not reasonable. Whether or not such indemnified defense is assumed by the indemnifying party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory shall not be subject to the indemnifying party)any liability for any settlement made without its consent. The indemnifying party shall not be liable for consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of any such action or proceeding erected without its written consenta release, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify form and hold harmless substance reasonably satisfactory to the indemnified party party, from and against any loss or all liability (to the extent stated above) by reason in respect of such settlement claim or judgmentlitigation for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If Each indemnified party shall give reasonably prompt notice to each indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from hereunder, but failure to so notify an indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 5(a) or 5(b) above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) shall not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided under Section 5(a) or 5(b) above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action or proceeding at such indemnifying party's own expense with counsel chosen by the indemnifying party and to participate approved by the indemnified parties defendant in the defense thereofsuch action or proceeding, but the fees and expenses of such counsel which approval shall not be at the expenses of unreasonably withheld; provided, however, that, if such indemnified party unless (i) or parties reasonably determine that a conflict of interest exists where it is advisable for such indemnified party or parties to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to them which are different from or in addition to those available to the indemnifying party has agreed to pay such fees and expensesparty, (ii) then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party or parties shall be entitled to one separate counsel at the indemnifying party's or parties' expense. If an indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to the preceding sentence, such indemnifying party's counsel shall be entitled to conduct such indemnifying party's defense and employ counsel reasonably satisfactory for the indemnified party or parties shall be entitled to conduct the defense of such indemnified partyparty or parties, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the as efficiently as possible. If an indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, the indemnifying party or parties will pay the reasonable fees and expenses of counsel for the indemnified party or parties. In such indemnified party; it being understoodevent, however, that the no indemnifying party shall notwill be liable for any settlement effected without the written consent of such indemnifying party. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesaccordance with this paragraph, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified parties incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If Each indemnified party or parties shall give reasonably prompt notice to each indemnifying party or parties of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from hereunder, but failure so to notify an indemnifying party hereunderor parties shall not relieve it or them from any liability which it or they may have under this indemnity agreement, such except to the extent that the indemnifying party shall is materially prejudiced by such failure to give notice. If the indemnifying party or parties so elects within a reasonable time after receipt of such notice, the indemnifying party or parties may assume the defense thereof, including of such action or proceeding at such indemnifying party's or parties' expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnified party, indemnifying party or parties and shall assume approved by the payment of all expenses. Such indemnified party shall have the right to employ separate counsel defendant in any such action and to participate in the defense thereofor proceeding, but the fees and expenses of such counsel which approval shall not be at the expenses of unreasonably withheld; provided, however, that, if such indemnified party unless (i) or parties determine in good faith that a conflict of interest exists and that therefore it is advisable for such indemnified party or parties to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it or them which are different from or in addition to those available to the indemnifying party, then the indemnifying party has agreed or parties shall not be entitled to pay assume such fees defense and expenses, the indemnified party or parties shall be entitled to separate counsel (iilimited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement) at the indemnifying party's or parties' expense. If an indemnifying party shall have failed or parties is or are not so entitled to assume the defense of such action or proceeding and employ counsel reasonably satisfactory does or do not assume such defense, after having received the notice referred to such indemnified party, or (iii) in the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense first sentence of the indemnifying partythis paragraph, the indemnifying party or parties will pay the reasonable fees and expenses of counsel for the indemnified party or parties (limited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement). No indemnifying party or parties will be liable for any settlement effected without the written consent of such indemnifying party or parties, which consent shall not have the right be unreasonably withheld. If an indemnifying party is entitled to assume assume, and assumes, the defense of such action or proceeding on behalf of in accordance with this paragraph, such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party parties shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified parties incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. Promptly after receipt by an identified party hereunder of written notice of the commencement of any action, suit, proceeding, investigation, or threat thereof with respect to which a claim for indemnification may be made pursuant hereto, such indemnified party shall, if a claim in respect thereto is to be made against an indemnifying party, give written notice to the indemnifying party of the threat or commencement thereof; provided, however, that the failure to so notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. If any such claim or action or proceeding (including any governmental investigation) shall be referred to hereunder is brought or asserted against any indemnified party hereunder in respect of which indemnity may be sought from an and it then notifies the indemnifying party hereunderof the threat or commencement thereof, such the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other indemnifying party similarly notified, to assume the defense thereof, including the employment of thereof with counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such (which counsel shall be at not, except with the expenses consent of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by be counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable to an indemnified party hereunder for any legal expenses of counsel or any other expenses incurred by such indemnified party in connection with the defense thereof, unless the indemnifying party has failed to assume the defense of such claim or action or to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnified party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such action. The indemnifying party shall not be required to indemnify the indemnified party with respect to any amounts paid in settlement of any such action or proceeding erected without its written consentaction, but if settled with its written consentproceeding, or if there is a final judgment for investigation entered into without the plaintiff in any such action or proceedingwritten consent of the indemnifying party, the which consent shall not be unreasonably withheld. No indemnifying party shall indemnify and hold harmless consent to the entry of any judgment or enter into any settlement without the consent of the indemnified party from and against unless (a) such judgment or settlement does not impose any loss obligation or liability upon the indemnified party other than the execution, delivery, or approval thereof, and (b) such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to the extent stated above) by reason such indemnified party of a full release and discharge from all liability in respect of such settlement claim and a full release of all persons that may be entitled to or judgmentobligated to provide indemnification or contribution under this Article.

Conduct of Indemnification Proceedings. If any action Person shall be entitled to indemnity hereunder (an “indemnified party”), such indemnified party shall give prompt written notice to the party from which such indemnity is sought (the “indemnifying party”) of any claim or of the commencement of any proceeding (including any investigation by any governmental investigationauthority) shall be brought or asserted against any with respect to which such indemnified party hereunder in respect of which indemnity may be sought from an indemnifying party hereunderseeks indemnification or contribution pursuant hereto; provided, such however, that the delay or failure to so notify the indemnifying party shall assume not relieve the indemnifying party from any obligation or liability except to the extent that the indemnifying party has been prejudiced by such delay or failure. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such claim or proceeding, to assume, at the indemnifying party’s expense, the defense thereofof any such claim or proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that (i) an indemnified party shall have the right to employ separate counsel in any such action claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless unless: (i1) the indemnifying party has agreed agrees to pay such fees and expenses, ; (ii2) the indemnifying party shall have failed fails promptly to assume the defense of such action claim or proceeding and or fails to employ counsel reasonably satisfactory to such indemnified party, ; or (iii3) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which it that are different from in addition to or additional to are inconsistent with those available to the indemnifying party or that a conflict of interest is likely to exist among such indemnified party and any other indemnified parties (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, case the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party); it being understoodand (ii) subject to clause (3) above, however, that the indemnifying party shall not, in connection with any one such action claim or proceeding or separate but substantially similar or related actions claim or proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or of circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all of the indemnified parties. Whether or not such indemnified party, which firm shall be designated in writing defense is assumed by such indemnified party and reasonably satisfactory to the indemnifying party), such indemnifying party shall not be subject to any liability for any settlement made without its written consent. The indemnifying party shall not be liable for consent to entry of any judgment or enter into any settlement that (A) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release, in form and substance reasonably satisfactory to the indemnified party, from all liability in respect of such claim or litigation for which such indemnified party would be entitled to indemnification hereunder and (B) includes a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgmentparty.

Conduct of Indemnification Proceedings. If Promptly after receipt by an indemnified party under this paragraph 10(e) of written notice of the commencement of any action action, proceeding, suit or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Warrant Certificate, such indemnified party shall notify in writing the indemnifying party of such commencement or threat; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party (A) hereunder, unless the indemnifying party is actually prejudiced thereby, or (B) otherwise than under this paragraph 10(e). In case any such action, suit or proceeding (including any governmental investigation) shall be brought or asserted against any indemnified party, and the indemnified party hereunder in respect of which indemnity may be sought from an shall notify the indemnifying party hereunderof the commencement thereof, such the indemnifying party shall be entitled to participate therein and the indemnifying party shall assume the defense thereof, including the employment of with counsel reasonably satisfactory to such the indemnified party, and shall assume the payment of obligation to pay all expensesexpenses relating thereto. Such The indemnified party shall have the right to employ separate counsel in any such action action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (iA) the indemnifying party has agreed to pay such fees and expenses, (iiB) the indemnifying party shall have failed to assume the defense of such action action, suit or proceeding and or to employ counsel reasonably satisfactory to such the indemnified party, party therein or to pay all expenses relating thereto or (iiiC) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnified party and such the indemnifying party, party and such the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such the indemnified party which are different from or additional to those available to the indemnifying party and which may result in a conflict between the indemnifying party and such indemnified party (in which case, if such the indemnified party notifies the indemnifying party in writing that it the indemnified party elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such the indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action action, suit or proceeding or separate but substantially similar or related actions actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such the indemnified party, which firm shall be designated in writing by such the indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If Promptly after receipt by an indemnified party under this Section 5 of written notice of the commencement of any action action, proceeding, suit or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, such indemnified party shall notify in writing the indemnifying party of such commencement or threat; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party (i) hereunder, unless the indemnifying party is actually prejudiced thereby, or (ii) otherwise than under this Section 5. In case any such action, suit or proceeding (including any governmental investigation) shall be brought or asserted against any indemnified party, and the indemnified party hereunder in respect of which indemnity may be sought from an shall notify the indemnifying party hereunderof the commencement thereof, such the indemnifying party shall be entitled to participate therein and the indemnifying party shall assume the defense thereof, including the employment of with counsel reasonably satisfactory to such the indemnified party, and shall assume the payment of obligation to pay all expensesexpenses relating thereto. Such The indemnified party shall have the right to employ separate counsel in any such action action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed to assume the defense of such action action, suit or proceeding and or to employ counsel reasonably satisfactory to such the indemnified party, party therein or to pay all expenses relating thereto or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnified party and such the indemnifying party, party and such the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such the indemnified party which are different from or additional to those available to the indemnifying party and which may result in a conflict between the indemnifying party and such indemnified party (in which case, if such the indemnified party notifies the indemnifying party in writing that it the indemnified party elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such the indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action action, suit or proceeding or separate but substantially similar or related actions actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such all indemnified partyparties, which firm shall be designated in writing by such the indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party party") in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all indemnified parties, and that all such indemnified party, which fees and expenses shall be reimbursed as they are incurred. Such separate firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Notes deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Notes are or would be convertible or exchangeable as of the date on which such designation is made) of the Registrable Securities covered by such the Registration Statement held by Holders that are indemnified party and reasonably satisfactory parties pursuant to Section 6(a) and, in the indemnifying partycase of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 3.5 or 3.6 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 3.5 or 3.6 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party’s own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment of all expenses. Such indemnified indemnifying party shall have the right to employ separate counsel in will not settle any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) unless, as a condition to such settlement, the indemnifying party has agreed secures the unconditional release of the indemnified party; and provided further, that if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to pay such fees and expensesbe represented by separate counsel or that, (ii) upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party’s expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party’s counsel shall be entitled to conduct the indemnifying party’s defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigationinvestigation or inquiry) shall be brought or any claim shall be asserted against any person entitled to indemnity hereunder (an “Indemnified Party”), such indemnified party hereunder shall promptly notify the party from which such indemnity is sought (the “Indemnifying Party”) in respect of which indemnity may be sought from an indemnifying party hereunderwriting, such and the indemnifying party shall assume the defense thereof, thereof including the employment of counsel reasonably satisfactory to such the indemnified party, party and shall assume the payment of all expensesfees and expenses incurred in connection with the defense thereof. Such All such fees and expenses (including any fees and expenses incurred in connection with investigation or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within 20 days of written notice thereof to the indemnifying party; provided, however, that if, in accordance with this Section 9, the indemnifying party is not liable to the indemnified party, such fees and expenses shall be returned promptly to the indemnifying party. Any such indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (ia) the indemnifying party has agreed to pay such fees and expenses, (iib) the indemnifying party shall have failed promptly to assume the defense of such action action, claim or proceeding and to employ counsel reasonably satisfactory to the indemnified party in any such indemnified partyaction, claim or proceeding, or (iiic) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party it which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action action, claim or proceeding on behalf of such indemnified party; , it being understood, however, that the indemnifying party shall not, in connection with any one such action action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all such indemnified partyparties, which firm shall be designated unless in writing by the opinion of counsel for such indemnified party a conflict of interest may exist between such indemnified party and reasonably satisfactory any other of such indemnified parties with respect to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consentaction, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action claim or proceeding, in which event the indemnifying party shall indemnify be obligated to pay the fees and hold harmless expenses of such additional counsel or counsels). No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the release of such indemnified party from and against all liability in respect to such claim or litigation without the written consent (which consent will not be unreasonably withheld) of the indemnified party. No indemnified party shall consent to entry of any loss judgment or liability enter into any settlement without the written consent (to which consent will not be unreasonably withheld) of the extent stated above) by reason of such settlement indemnifying party from which indemnify or judgmentcontribution is sought.

Conduct of Indemnification Proceedings. If An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 4.1 or 4.2 above, unless and only to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided under Section 4.1 or 4.2 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party’s own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment indemnifying party will not settle, compromise or consent to the entry of all expenses. Such indemnified party shall have the right any judgment with respect to employ separate counsel in any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) such settlement, compromise or consent secures the unconditional release of the indemnified party; and provided further, that, if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party has agreed to pay such fees and expensesparty, (ii) then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party’s expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party’s counsel shall be entitled to conduct the indemnifying party’s defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If Each indemnified party shall -------------------------------------- give reasonably prompt notice to each indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from hereunder, but failure to so notify an indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 6(a) or (b) above, such indemnifying party shall assume unless and to the defense thereof, including the employment extent it did not otherwise learn of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but lack of notice by the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) materially prejudices the indemnifying party has agreed to pay such fees or results in the forfeiture by the indemnifying party of substantial rights and expenses, defenses and (ii) shall not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided under Section 6(a) or (b) above. After receipt of such notice, the indemnifying party shall have failed be entitled to participate in and, to the extent it shall wish, jointly with any other indemnifying party so notified, to assume the defense of such action or proceeding at such indemnifying party's own expense with counsel chosen by such indemnifying party and employ counsel reasonably satisfactory to such approved by the indemnified party, or (iii) which approval shall not be unreasonably withheld; provided, however, that, if the named parties to defendants in any -------- ------- such action or proceeding (including any impleaded parties) include both such the indemnified party and such the indemnifying party, party and such the indemnified party shall have been advised by counsel reasonably determines, upon advice of counsel, that a conflict of interest exists or that there may be one or more legal defenses available to such it or other indemnified party which parties that are different from or additional in addition to those available to the indemnifying party (in which caseparty, if such then the indemnified party notifies shall be entitled to separate counsel (which shall be limited to a single law firm), the reasonable fees and expenses of which shall be paid by the indemnifying party. If the indemnifying party does not assume the defense of any such action or proceeding, after having received the notice referred to in writing that it elects to employ separate counsel at the expense first sentence of the indemnifying partythis paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel (which shall be limited to a single law firm) for the indemnified party. In such event, however, the indemnifying party will not have be liable for any settlement effected without the right to assume written consent of such indemnifying party. If the indemnifying party assumes the defense of any such action or proceeding on behalf of in accordance with this paragraph, such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, except as set forth in the indemnifying party shall indemnify and hold harmless proviso in the indemnified party from and against any loss or liability (to the extent stated above) by reason second sentence of such settlement or judgmentthis Section 6(c).

Conduct of Indemnification Proceedings. If Each indemnified party or parties shall give reasonably prompt notice to each indemnifying party or parties of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from hereunder, but failure so to notify an indemnifying party hereunderor parties shall not relieve it or them from any liability which it or they may have under this indemnity agreement, such except to the extent that the indemnifying party shall is materially prejudiced by such failure to give notice. If the indemnifying party or parties so elects within a reasonable time after receipt of such notice, the indemnifying party or parties may assume the defense thereof, including of such action or proceeding at such indemnifying party's or parties' expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnified party, indemnifying party or parties and shall assume approved by the payment of all expenses. Such indemnified party shall have the right to employ separate counsel defendant in any such action and to participate in the defense thereofor proceeding, but the fees and expenses of such counsel which approval shall not be at the expenses of unreasonably withheld; provided, however, that, if such indemnified party unless (i) or parties determine in good faith that a conflict of interest exists and that therefore it is advisable for such indemnified party or parties to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it or them which are different from or in addition to those available to the indemnifying party, then the indemnifying party has agreed or parties shall not be entitled to pay assume such fees defense and expenses, the indemnified party or parties shall be entitled to separate counsel (iilimited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement) at the indemnifying party's or parties' expense. If an indemnifying party shall have failed or parties is not so entitled to assume the defense of such action or proceeding and employ counsel reasonably satisfactory does not assume such defense, after having received the notice referred to such indemnified party, or (iii) in the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense first sentence of the indemnifying partythis paragraph, the indemnifying party or parties will pay the reasonable fees and expenses of counsel for the indemnified party or parties (limited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement). No indemnifying party or parties will be liable for any settlement effected without the written consent of such indemnifying party or parties, which consent shall not have the right be unreasonably withheld. If an indemnifying party is entitled to assume assume, and assumes, the defense of such action or proceeding on behalf of in accordance with this paragraph, such indemnified party; it being understood, however, that the indemnifying party or parties shall not, except as otherwise provided in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesthis subsection (c), be liable for the any fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified parties incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 3.4 or 3.5 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 3.4 or 3.5 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party's own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment of all expenses. Such indemnified indemnifying party shall have the right to employ separate counsel in will not settle any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) unless, as a condition to such settlement, the indemnifying party has agreed secures the unconditional release of the indemnified party; and provided further, that if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to pay such fees and expensesbe represented by separate counsel or that, (ii) upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party's expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If The indemnified party shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 2.1 or 2.2 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights or defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 2.1 or 2.2 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party's own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; PROVIDED, HOWEVER, that the payment of all expenses. Such indemnified indemnifying party shall have the right to employ separate counsel in will not settle any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) unless, as a condition to such settlement, the indemnifying party has agreed secures the unconditional release of the indemnified party; and PROVIDED FURTHER, that if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to pay such fees and expensesbe represented by separate counsel or that, (ii) upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party's expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include it being understood that both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available will cooperate with each other to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume conduct the defense of such action or proceeding on behalf as efficiently as possible. If the indemnifying party (i) is not so entitled to assume the defense of such action, (ii) does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, or (iii) fails to employ counsel that is reasonably satisfactory to the indemnified party; it being understood, after having received the notice referred to in the first sentence of this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party. In such event, however, that the indemnifying party will not be liable for any settlement effected without the written consent of the indemnifying party, which consent shall notnot be unreasonably withheld. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any entitled to indemnity hereunder (an "indemnified party"), such indemnified party hereunder in shall give prompt notice to the party from which such indemnity is sought (the "indemnifying party") of any claim or of the commencement of any proceeding with respect of to which indemnity may be sought from an indemnifying such indemnified party hereunderseeks indemnification or contribution pursuant hereto; provided, such however, that the delay or failure to so notify the indemnifying party shall assume not relieve the indemnifying party from any obligation or liability except to the extent that the indemnifying party has been prejudiced by such delay or failure. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such claim or proceeding, to assume, at the indemnifying party's expense, the defense thereofof any such claim or proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that (i) an indemnified party shall have the right to employ separate counsel in any such action claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless unless: (i1) the indemnifying party has agreed agrees to pay such fees and expenses, ; (ii2) the indemnifying party shall have failed fails promptly to assume the defense of such action claim or proceeding and or fails to employ counsel reasonably satisfactory to such indemnified party, ; or (iii3) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which it that are different from or additional to inconsistent with those available to the indemnifying party or that a conflict of interest is likely to exist among such indemnified party and any other indemnified parties (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, case the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party); it being understoodand (ii) subject to clause (3) above, however, that the indemnifying party shall not, in connection with any one such action claim or proceeding or separate but substantially similar or related actions claims or proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all of the indemnified parties, or for fees and expenses that are not reasonable. Whether or not such indemnified defense is assumed by the indemnifying party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory shall not be subject to the indemnifying party)any liability for any settlement made without its consent. The indemnifying party shall not be liable for consent to entry of any judgment or enter into any settlement unless (i) there is no finding or admission of any such action or proceeding erected without its written consentviolation of any rights of any person and no effect on any other claims that may be made against the indemnified party, but if settled with its written consent, or if there (ii) the sole relief provided is a final judgment for the plaintiff monetary damages that are paid in any such action or proceeding, full by the indemnifying party shall indemnify and hold harmless (iii) such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release, in form and substance reasonably satisfactory to the indemnified party party, from and against any loss or all liability (to the extent stated above) by reason in respect of such settlement claim or judgmentlitigation for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any entitled to indemnity hereunder (an “indemnified party”), such indemnified party hereunder in shall give prompt notice to the party from which such indemnity is sought (the “indemnifying party”) of any claim or of the commencement of any proceeding with respect of to which indemnity may be sought from an indemnifying such indemnified party hereunderseeks indemnification or contribution pursuant hereto; provided, such however, that the delay or failure to so notify the indemnifying party shall assume not relieve the indemnifying party from any obligation or liability except to the extent that the indemnifying party has been prejudiced by such delay or failure. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such claim or proceeding, to assume, at the indemnifying party’s expense, the defense thereofof any such claim or proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that (i) an indemnified party shall have the right to employ separate counsel in any such action claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless unless: (i1) the indemnifying party has agreed agrees to pay such fees and expenses, ; (ii2) the indemnifying party shall have failed fails promptly to assume the defense of such action claim or proceeding and or fails to employ counsel reasonably satisfactory to such indemnified party, ; or (iii3) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which it that are different from or additional to inconsistent with those available to the indemnifying party or that a conflict of interest is likely to exist among such indemnified party and any other indemnified parties (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, case the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party); it being understoodand (ii) subject to clause (3) above, however, that the indemnifying party shall not, in connection with any one such action claim or proceeding or separate but substantially similar or related actions claims or proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all of the indemnified parties, or for fees and expenses that are not patently unreasonable. Whether or not such indemnified defense is assumed by the indemnifying party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory shall not be subject to the indemnifying party)any liability for any settlement made without its consent. The indemnifying party shall not be liable for consent to entry of any judgment or enter into any settlement without the consent of the indemnified party unless (i) there is no finding or admission of any such action or proceeding erected without its written consentviolation of any rights of any Person and no effect on any other claims that may be made against the indemnified party, but if settled with its written consent, or if there (ii) the sole relief provided is a final judgment for the plaintiff monetary damages that are paid in any such action or proceeding, full by the indemnifying party shall indemnify and hold harmless (iii) such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release, in form and substance reasonably satisfactory to the indemnified party party, from and against any loss or all liability (to the extent stated above) by reason in respect of such settlement claim or judgmentlitigation for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any entitled to indemnity hereunder (an "indemnified party"), such indemnified party hereunder in shall give prompt notice to the party or parties from which such indemnity is sought (the "indemnifying parties") of the commencement of any action, suit, proceeding or investigation or written threat thereof (a "Proceeding") with respect to which such indemnified party seeks indemnification or contribution pursuant hereto; provided, however, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent that the indemnifying parties have been prejudiced by such failure. The indemnifying parties shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of which indemnity may be sought written notice from an such indemnified party of such Proceeding, to assume, at the indemnifying party hereunderparties' expense, such indemnifying party shall assume the defense thereofof any such Proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that an indemnified party or parties (if more than one such indemnified party is named in any Proceeding) shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless or parties unless: (i) the indemnifying party has agreed parties agree to pay such fees and expenses, ; (ii) the indemnifying party shall have failed parties fail promptly to assume the defense of such action Proceeding or proceeding and fail to employ counsel reasonably satisfactory to such indemnified party, party or parties; or (iii) the named parties to any such action or proceeding Proceeding (including any impleaded parties) include both such indemnified party or parties and the indemnifying parties or an affiliate of the indemnifying parties or such indemnifying partyindemnified parties, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which or parties that are different from or additional to those available to the indemnifying party (parties, in which case, if such indemnified party or parties notifies the indemnifying party parties in writing that it elects to employ separate counsel at the expense of the indemnifying partyparties, the indemnifying party parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of such action or proceeding on behalf of such indemnified party; the indemnifying parties, it being understood, however, that that, unless there exists a conflict among indemnified parties, the indemnifying party parties shall not, in connection with any one such action or proceeding Proceeding or separate but substantially similar or related actions or proceedings Proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified partyparty or parties. Whether or not such defense is assumed by the indemnifying parties, which firm shall be designated in writing by such indemnifying parties or indemnified party and reasonably satisfactory or parties will not be subject to the indemnifying partyany liability for any settlement made without its or their consent (but such consent will not be unreasonably withheld). The indemnifying parties shall not consent to entry of any judgment or enter into any settlement which (i) provides for other than monetary damages without the consent of the indemnified party or parties (which consent shall not be liable for any settlement unreasonably withheld or delayed) or (ii) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of any such action or proceeding erected without its written consenta release, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify form and hold harmless substance satisfactory to the indemnified party or parties, from and against any loss or all liability (to the extent stated above) by reason in respect of such settlement or judgmentProceeding for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If The indemnified party shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any it of which the indemnified party hereunder has actual knowledge and in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 4(a) or 4(b), unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 4(a) or 4(b). If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party’s own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that, if the payment of all expenses. Such indemnified party shall have reasonably determines that a conflict of interest exists where it is advisable for the right indemnified party to employ be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it which are different from or in any such action and addition to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) those available to the indemnifying party has agreed to pay such fees and expensesparty, (ii) then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party’s expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to the preceding sentence, the indemnifying party’s counsel shall be entitled to conduct the indemnifying party’s defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying partyas efficiently as possible; provided, and such however, that counsel for the indemnified party shall have been advised by counsel that there may not be one or more legal defenses available required to such take any action which would prejudice the defense of the indemnified party which are different from or additional to those available to party. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such indemnified party; it being understoodthis paragraph, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in pay the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time counsel for such the indemnified party. In such event, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to however, the indemnifying party). The indemnifying party shall not be liable for any settlement effected without the written consent of any the indemnifying party. If an indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding erected without its written consent, but if settled in accordance with its written consent, or if there is a final judgment for the plaintiff in any such action or proceedingthis paragraph, the indemnifying party shall indemnify not be liable for any fees and hold harmless expenses of counsel for the indemnified party from and against any loss incurred thereafter in connection with such action or liability (to the extent stated above) by reason of such settlement or judgmentproceeding.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to Section 7(a) or 7(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party party”) in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified party, which parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by by, in the case of parties indemnified pursuant to Section 7(a) hereof, the Holders of a majority (with Holders of Units deemed to be the Holders, for purposes of determining such indemnified party and reasonably satisfactory majority, of the number of shares of Underlying Common Stock that such Holders are obligated to purchase pursuant to the indemnifying party)Purchase Contracts that are a component of such Units) as of the date on which such designation is made) of the Registrable Securities covered by the Registration Statement held by Holders that are indemnified parties pursuant to Section 7(a) hereof and, in the case of parties indemnified pursuant to Section 7(b) hereof, the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of the first paragraph of this subsection, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of any indemnified party.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) shall be brought or any claim shall be asserted against any indemnified party hereunder in respect of which indemnity may be sought from an indemnifying party hereunderparty, such the indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expensesexpenses incurred in connection with the defense thereof; provided, that the indemnifying party may require such indemnified party to undertake to reimburse all such fees and expenses if it is ultimately determined that such indemnified party is not entitled to indemnification or advancement of expenses hereunder. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed to promptly assume the defense of such action action, claim or proceeding and to employ counsel reasonably satisfactory to such indemnified party, or (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised in writing by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action action, claim or proceeding on behalf of such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel, subject to the indemnifying party's approval of counsel, which approval shall not be unreasonably withheld) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). .) The indemnifying party shall not be liable for any settlement of any such action action, claim or proceeding erected effected without its written consentconsent (such consent which shall not be unreasonably withheld), but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall agrees to indemnify and hold harmless the such indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If The indemnified party shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 2.1 or 2.2 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 2.1 or 2.2 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party's own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment of all expenses. Such indemnified indemnifying party shall have the right to employ separate counsel in will not settle any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) which shall not be unreasonably withheld or delayed unless, as a condition to such settlement, the indemnifying party has agreed secures the unconditional release of the indemnified party; and provided further, that if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to pay such fees and expensesbe represented by separate counsel or that, (ii) upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party's expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party will not be liable for any settlement effected without the written consent of the indemnifying party which shall notnot be unreasonably withheld or delayed. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party party") in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all indemnified parties, and that all such indemnified party, which fees and expenses shall be reimbursed as they are incurred. Such separate firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Debentures deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Debentures are or would be convertible or exchangeable as of the date on which such designation is made) of the Registrable Securities covered by such the Registration Statement held by Holders that are indemnified party and reasonably satisfactory parties pursuant to Section 6(a) and, in the indemnifying partycase of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel and the indemnified party would be entitled thereto pursuant to the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If Each indemnified party shall give reasonably prompt notice to each indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 3.5 or 3.6 above, such indemnifying party shall assume unless and to the defense thereof, including the employment extent it did not otherwise learn of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate the lack of notice by the indemnified party results in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) forfeiture by the indemnifying party has agreed to pay such fees of substantial rights and expenses, defenses and (ii) shall not, in any event, relieve the indemnifying party shall have failed from any obligations to the indemnified party other than the indemnification obligation provided under Section 3.5 or 3.6 above. If the indemnifying party so elects within a reasonable time after receipt of notice, the indemnifying party may assume the defense of such the action or proceeding at the indemnifying party's own expense with counsel chosen by the indemnifying party and employ counsel reasonably satisfactory to such approved by the indemnified party, or (iii) which approval shall not be unreasonably withheld; provided, however, that if the named parties to defendants in any such action or proceeding (including any impleaded parties) include both such the indemnified party and such the indemnifying party, party and such the indemnified party shall have been advised by reasonably determines based upon advice of legal counsel experienced in such matters, that there may be one or more legal defenses available to such indemnified party it which are different from or additional in addition to those available to the indemnifying party (in which caseparty, if such then the indemnified party notifies the indemnifying party in writing that it elects shall be entitled to employ separate counsel at the expense of indemnifying party's expense, which counsel shall be chosen by the indemnified party and approved by the indemnifying party, the indemnifying party which approval shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified partybe unreasonably withheld; provided further, that it being understood, however, is understood that the indemnifying party party; shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, not be liable for the fees fees, charges and expenses disbursements of more than one separate firm firm. If the indemnifying party does not assume the defense, after having received the notice referred to in the first sentence of attorneys (together with appropriate local counsel) at any time this Section, the indemnifying party will pay the reasonable fees and expenses of counsel for such the indemnified party; in that event, which firm shall however, the indemnifying party will not be designated in writing by such indemnified party and reasonably satisfactory to liable for any settlement effected without the written consent of the indemnifying party). The If an indemnifying party assumes the defense of an action or proceeding in accordance with this Section, the indemnifying party shall not be liable for any settlement fees and expenses of any such counsel for the indemnified party incurred thereafter in connection with that action or proceeding erected without its written consent, but if settled with its written consent, or if there is except as set forth in the proviso in the second sentence of this Section 3.7. Unless and until a final judgment for is rendered that an indemnified party is not entitled to the plaintiff in any such action or proceedingcosts of defense under the provisions of this Section, the indemnifying party shall indemnify and hold harmless reimburse, promptly as they are incurred, the indemnified party from and against any loss or liability (to the extent stated above) by reason party's costs of such settlement or judgmentdefense.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Proceeding shall be brought or asserted against any Person entitled to indemnification hereunder (an "INDEMNIFIED PARTY"), such indemnified party hereunder shall promptly notify the party or parties from which such indemnification is sought (the "INDEMNIFYING PARTIES") in respect writing; provided, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent (but only to the extent) that it shall be finally determined by a court of competent jurisdiction (which indemnity may be sought from determination is not subject to appeal) that the indemnifying parties have been prejudiced materially by such failure. The indemnifying parties shall have the right, exercisable by giving written notice to an indemnifying party hereunder, such indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume within 20 Business Days after receipt of written notice from such indemnified party of such Proceeding, to assume, at their expense, the payment defense of all expenses. Such any such Proceeding; provided, that an indemnified party shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless or parties unless: (i) the indemnifying party has parties have agreed to pay such fees and expenses, ; (ii) the indemnifying party parties shall have failed promptly to assume the defense of such action Proceeding or proceeding and shall have failed to employ counsel reasonably satisfactory to such indemnified party, ; or (iii) the named parties to any such action or proceeding Proceeding (including any impleaded parties) include both such indemnified party and such one or more indemnifying partyparties (or any affiliates or controlling persons of any of the indemnifying parties), and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which that are different from in addition to, or additional to in conflict with, those defenses available to the indemnifying party or such affiliate or controlling person (in which case, if such indemnified party notifies the indemnifying party parties in writing that it elects to employ separate counsel at the expense of the indemnifying partyparties, the indemnifying party parties shall not have the right to assume the defense thereof and the reasonable fees and expenses of such action or proceeding on behalf counsel shall be at the expense of such indemnified partythe indemnifying parties; it being understood, however, that that, the indemnifying party parties shall not, in connection with any one such action or proceeding Proceeding or separate but substantially similar or related actions or proceedings Proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The No indemnifying party shall not be liable for any settlement of any such action or proceeding erected Proceeding effected without its written consent, but if settled with its written consent, or if there is be a final judgment for the plaintiff in any such action or proceedingProceeding, the each indemnifying party shall jointly and severally agrees, subject to the exceptions and limitations set forth above, to indemnify and hold harmless the each indemnified party from and against any loss or liability (to the extent stated above) and all Losses by reason of such settlement or judgment. The indemnifying party shall not consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release, in form and substance reasonably satisfactory to the indemnified party, from all liability in respect of such Proceeding for which such indemnified party would be entitled to indemnification hereunder (whether or not any indemnified party is a party thereto).

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) shall be brought or asserted against any indemnified party hereunder in respect of which indemnity may be sought from an indemnifying party hereunder, such indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any entitled to indemnity hereunder (an “indemnified party”), such indemnified party hereunder in shall give prompt notice to the party or parties from which such indemnity is sought (the “indemnifying parties”) of the commencement of any action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which such indemnified party seeks indemnification or contribution pursuant hereto; provided, however, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent that the indemnifying parties have been prejudiced by such failure. The indemnifying parties shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of which indemnity may be sought written notice from an such indemnified party of such Proceeding, to assume, at the indemnifying party hereunderparties’ expense, such indemnifying party shall assume the defense thereofof any such Proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that an indemnified party or parties (if more than one such indemnified party is named in any Proceeding) shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless or parties unless: (i) the indemnifying party has agreed parties agree to pay such fees and expenses, ; (ii) the indemnifying party shall have failed parties fail promptly to assume the defense of such action Proceeding or proceeding and fail to employ counsel reasonably satisfactory to such indemnified party, party or parties; or (iii) the named parties to any such action or proceeding Proceeding (including any impleaded parties) include both such indemnified party or parties and the indemnifying parties or an affiliate of the indemnifying parties or such indemnifying partyindemnified parties, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which or parties that are different from or additional to those available to the indemnifying party (parties, in which case, if such indemnified party or parties notifies the indemnifying party parties in writing that it elects to employ separate counsel at the expense of the indemnifying partyparties, the indemnifying party parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of such action or proceeding on behalf of such indemnified party; the indemnifying parties, it being understood, however, that that, unless there exists a conflict among indemnified parties, the indemnifying party parties shall not, in connection with any one such action or proceeding Proceeding or separate but substantially similar or related actions or proceedings Proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified partyparty or parties. Whether or not such defense is assumed by the indemnifying parties, which firm shall be designated in writing by such indemnifying parties or indemnified party and reasonably satisfactory or parties will not be subject to the indemnifying partyany liability for any settlement made without its or their consent (but such consent will not be unreasonably withheld). The indemnifying parties shall not consent to entry of any judgment or enter into any settlement which (i) provides for other than monetary damages without the consent of the indemnified party or parties (which consent shall not be liable for any settlement unreasonably withheld or delayed) or (ii) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of any such action or proceeding erected without its written consenta release, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify form and hold harmless substance satisfactory to the indemnified party or parties, from and against any loss or all liability (to the extent stated above) by reason in respect of such settlement or judgmentProceeding for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party party") in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all indemnified parties, and that all such indemnified party, which fees and expenses shall be reimbursed as they are incurred. Such separate firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Debentures deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Debentures are or would be convertible or exchangeable as of the date on which such designation is made) of the Registrable Securities covered by such the Registration Statement held by Holders that are indemnified party and reasonably satisfactory parties pursuant to Section 6(a) and, in the indemnifying partycase of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If The indemnified party shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 2.1 or 2.2 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights or defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 2.1 or 2.2 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party's own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment of all expenses. Such indemnified indemnifying party shall have the right to employ separate counsel in will not settle any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) unless, as a condition to such settlement, the indemnifying party has agreed secures the unconditional release of the indemnified party; and provided further, that if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to pay such fees and expensesbe represented by separate counsel or that, (ii) upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party's expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include it being understood that both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available will cooperate with each other to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume conduct the defense of such action or proceeding on behalf as efficiently as possible. If the indemnifying party (i) is not so entitled to assume the defense of such action, (ii) does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, or (iii) fails to employ counsel that is reasonably satisfactory to the indemnified party; it being understood, after having received the notice referred to in the first sentence of this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party. In such event, however, that the indemnifying party will not be liable for any settlement effected without the written consent of the indemnifying party, which consent shall notnot be unreasonably withheld. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If Promptly after receipt by an indemnified party under this Section 5 of written notice of the commencement of any action action, proceeding, suit or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, such indemnified party shall notify in writing the indemnifying party of such commencement or threat; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party (i) hereunder, unless the indemnifying party is actually prejudiced thereby, or (ii) otherwise than under this Section 5. In case any such action, suit or proceeding (including any governmental investigation) shall be brought or asserted against any indemnified party, and the indemnified party hereunder in respect of which indemnity may be sought from an shall notify the indemnifying party hereunderof the commencement thereof, such the indemnifying party shall be entitled to participate therein and the indemnifying party shall assume the defense thereof, including the employment of with counsel reasonably satisfactory to such the indemnified party, and shall assume the payment of obligation to pay all expensesexpenses relating thereto. Such The indemnified party shall have the right to employ separate counsel in any such action action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed to assume the defense of such action action, suit or proceeding and or to employ counsel reasonably satisfactory to such the indemnified party, party therein or to pay all expenses relating thereto or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnified party and such the indemnifying party, party and such the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such the indemnified party which are different from or additional to those available to the indemnifying party and which may result in a conflict between the indemnifying party and such indemnified party (in which case, if such the indemnified party notifies the indemnifying party in writing that it the indemnified party elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such the indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action action, suit or proceeding or separate but substantially similar or related actions actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such the indemnified party, which firm shall be designated in writing by such the indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party party") in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all indemnified parties, and that all such indemnified party, which fees and expenses shall be reimbursed as they are incurred. Such separate firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Debentures deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Debentures are or would be convertible or exchangeable as of the date on which such designation is made) of the Registrable Securities covered by such the Registration Statement held by Holders that are indemnified party and reasonably satisfactory parties pursuant to Section 6(a) and, in the indemnifying partycase of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel and the indemnified party would be entitled thereto pursuant to the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding (and in the event of a settlement that involves an unconditional release of such indemnified party, the indemnifying party will send prompt written notice of such settlement to the indemnified party).

Conduct of Indemnification Proceedings. If An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 3.1 or 3.2 above, unless and only to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided under Section 3.1 or 3.2 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party’s own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment indemnifying party will not settle, compromise or consent to the entry of all expenses. Such indemnified party shall have the right any judgment with respect to employ separate counsel in any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) such settlement, compromise or consent secures the unconditional release of the indemnified party; and provided further, that, if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party has agreed to pay such fees and expensesparty, (ii) then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party’s expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party’s counsel shall be entitled to conduct the indemnifying party’s defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, it being understood that both such counsel will cooperate with each other, to the extent feasible in light of the conflict of interest or (iii) different available legal defenses, to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to Section 6(a) or 6(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party party”) in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counselcounsel at its standard non-premium rates) at any time for all such indemnified party, which parties and that all such fees and expenses shall be promptly reimbursed. Such firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Notes deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Notes are or would be convertible as of the date on which such designation is made) of the Registrable Securities covered by such the Registration Statement held by Holders that are indemnified party and reasonably satisfactory parties pursuant to Section 6(a) and, in the indemnifying partycase of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgmentjudgment that is indemnifiable pursuant to Section 6(a) or 6(b), as the case may be. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement; provided, that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party, prior to the date of such settlement, (1) reimburses such indemnified party in accordance with such request for the amount of such fees and expenses of counsel as the indemnifying party believes in good faith to be reasonable, and (2) provides written notice to the indemnified party that the indemnifying party disputes in good faith the reasonableness of the unpaid balance of such fees and expenses. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against is instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to Section 6.3 or Section 6.4, such Person will promptly notify the Person against whom such indemnity may be sought in writing (provided that the failure to notify the indemnifying party shall assume not relieve it from any liability that it may have under this Article VI, except to the defense thereof, including extent that it has been materially prejudiced by such failure) and the employment indemnifying party upon request of the indemnified party will retain counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall to represent the indemnified party and any others the indemnifying party may designate in such proceeding and will pay the fees and disbursements of such counsel related to the proceeding. In any such proceeding, any indemnified party will have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall will be at the expenses expense of such indemnified party unless (ia) the indemnifying party has and the indemnified party have mutually agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiib) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, in which case, if such indemnified party notifies case the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense fees and expenses of such action or proceeding on behalf of such indemnified party; it being understood, however, counsel will be paid by the Corporation. It is understood that the indemnifying party shall will not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified partyparties, which and that all such fees and expenses will be reimbursed as they are incurred. In the case of the retention of any such separate firm shall for the indemnified parties, such firm will be designated in writing by such the indemnified party and reasonably satisfactory to the indemnifying party)parties. The indemnifying party shall will not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written such consent, or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall will indemnify and hold harmless the such indemnified party parties from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. No indemnifying party will, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding, unless (i) such settlement includes an unconditional release of such indemnified party from all liability with respect to claims that are the subject matter of such proceeding, (ii) such settlement does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, and (iii) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to either of the two preceding paragraphs, such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all indemnified parties, and that all such indemnified party, which fees and expenses shall be reimbursed as they are incurred. Such separate firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Notes deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Notes are or would be convertible or exchangeable as of the date on which such designation is made) of the Registrable Securities covered by such the Registration Statement held by Holders that are indemnified party and reasonably satisfactory parties pursuant to Section 6(a) and, in the indemnifying partycase of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If any person shall become entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such indemnified party shall give prompt notice to the party from which such indemnity is sought (the "INDEMNIFYING PARTY") of any claim or of the commencement of any action or proceeding (including any governmental investigation) shall be brought or asserted against any with respect to which such indemnified party hereunder in respect of which indemnity may be sought from an seeks indemnification or contribution pursuant hereto; PROVIDED, HOWEVER, that the failure to so notify the indemnifying party hereunder, such will not relieve the indemnifying party shall assume from any obligation or liability except to the defense thereof, including extent that the employment of counsel reasonably satisfactory to indemnifying party has been prejudiced materially by such indemnified party, and shall assume the payment of all expensesfailure. Such indemnified The indemnifying party shall have the right to employ separate counsel in participate in, and, to the extent the indemnifying party so desires, jointly with any such action and other indemnifying party similarly noticed, to participate in assume the defense thereofthereof with counsel mutually satisfactory to the parties; PROVIDED, but HOWEVER, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses of such counsel shall to be at paid by the expenses indemnifying party, if representation of such indemnified party unless (i) by the counsel retained by the indemnifying party has agreed would be inappropriate due to pay such fees and expenses, (ii) the indemnifying party shall have failed to assume the defense of such action actual or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both potential differing interest between such indemnified party and any other party represented by such indemnifying counsel in such proceeding. All fees and expenses (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) will be paid to the indemnified party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available as incurred, within five calendar days of written notice thereof to the indemnifying party (in which case, if such regardless of whether it is ultimately determined that an indemnified party notifies the indemnifying party in writing that it elects is not entitled to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying partyindemnification hereunder). The indemnifying party shall will not be liable for consent to entry of any judgment or enter into any settlement of or otherwise seek to terminate any such action or proceeding erected without its written consentin which any indemnified party is or could be a party and as to which indemnification or contribution could be sought by such indemnified party under this Section 9, but if settled with its written consentunless such judgment, settlement or if there is other termination includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a final judgment for the plaintiff release, in any such action or proceeding, the indemnifying party shall indemnify form and hold harmless substance satisfactory to the indemnified party party, from and against any loss or all liability (to the extent stated above) by reason in respect of such settlement claim or judgmentlitigation for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 3.5 or 3.6 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 3.5 or 3.6 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party's own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment of all expenses. Such indemnified indemnifying party shall have the right to employ separate counsel in will not settle any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) unless, as a condition to such settlement, the indemnifying party has agreed secures the unconditional release of the indemnified party; and provided further, that if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to pay such fees and expensesbe represented by separate counsel or that, (ii) upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party's expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any entitled to indemnity hereunder such indemnified party hereunder in shall give prompt written notice to the party or parties from which such indemnity is sought of the commencement of any proceeding with respect to which such indemnified party seeks indemnification or contribution pursuant hereto; provided, however, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent that the indemnifying parties have been prejudiced by such failure. The indemnifying parties shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of which indemnity may be sought written notice from an such indemnified party of such proceeding, to assume, at the indemnifying party hereunderparties' expense, such indemnifying party shall assume the defense thereofof any such proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that an indemnified party or parties (if more than one such indemnified party is named in any proceeding) shall have the right to employ separate counsel in any such action proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party or parties unless (i) the parties to such proceeding include both the indemnified party or parties and the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such there exists, in the opinion of the indemnified party shall have been advised by counsel that there may be party(ies)' counsel, a conflict between one or more legal defenses available to such indemnifying parties and one or more indemnified party parties, in which are different from or additional to those available to case the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, that the indemnifying party shall notparties shall, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of not more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party)or parties. The If an indemnifying party shall not be liable for any settlement assumes the defense of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify and hold harmless parties will not be subject to any liability for any settlement made by the indemnified party from and against any loss without its or liability their consent (such consent not to the extent stated above) by reason of such settlement or judgmentbe unreasonably withheld).

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to Section 6(a) or 6(b) hereof, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party party") in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified party, which parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Debentures deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Debentures are or would be convertible as of the date on which such designation is made) of the Registrable Securities covered by such the Registration Statement held by Holders that are indemnified party and reasonably satisfactory parties pursuant to Section 6(a) and, in the indemnifying partycase of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If Each indemnified party or parties shall give reasonably prompt notice to each indemnifying party or parties of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought hereunder, but which it or they may have under this indemnity agreement, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. If the indemnifying party or parties so elects within a reasonable time after receipt of such notice, the indemnifying party or parties may assume the defense of such action or proceeding at such indemnifying party’s or parties’ expense with counsel chosen by the indemnifying party or parties and approved by the indemnified party defendant in such action or proceeding, which approval shall not be unreasonably withheld; provided, however, that, if such indemnified party or parties determines in good faith that a conflict of interest exists and that therefore it is advisable for such indemnified party or parties to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it or them which are different from or in addition to those available to the indemnifying party, then the indemnifying party or parties shall not be entitled to assume such defense and the indemnified party or parties shall be entitled to separate counsel (limited in each jurisdiction to one counsel for all underwriters and another counsel for all other indemnified parties under this Subscription Agreement) at the indemnifying party’s or parties’ expense. If an indemnifying party hereunder, such indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed or parties is not so entitled to assume the defense of such action or proceeding and employ counsel reasonably satisfactory does not assume such defense, after having received the notice referred to such indemnified party, or (iii) in the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense first sentence of the indemnifying partythis paragraph, the indemnifying party or parties will pay the reasonable fees and expenses of counsel for the indemnified party or parties (limited in each jurisdiction to one counsel for all underwriters and another counsel for all other indemnified parties under this Subscription Agreement). No indemnifying party or parties will be liable for any settlement effected without the written consent of such indemnifying party or parties, which consent shall not have the right be unreasonably withheld. If an indemnifying party is entitled to assume assume, and assumes, the defense of such action or proceeding on behalf of in accordance with this paragraph, such indemnified party; it being understood, however, that the indemnifying party or parties shall not, except as otherwise provided in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesthis subsection (c), be liable for the any fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified parties incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party party") in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all indemnified parties, and that all such indemnified party, which fees and expenses shall be reimbursed as they are incurred. Such separate firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Notes deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Notes are or would be convertible or exchangeable as of the date on which such designation is made) of the Registrable Securities covered by such the Registration Statement held by Holders that are indemnified party and reasonably satisfactory parties pursuant to Section 6(a) and, in the indemnifying partycase of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.

Conduct of Indemnification Proceedings. If The indemnified party shall give prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an indemnifying party hereunder, such indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory but failure to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) so notify the indemnifying party shall not relieve it from any liability which it may have failed under the indemnity agreement provided in Section 2.1 or 2.2 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense of such action or proceeding at such indemnifying party's own expense with counsel chosen by the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld; provided, that the indemnifying party will not settle any such action or proceeding without the written consent of the indemnified party (which consent will not be unreasonably withheld) unless, as a condition to such settlement, the indemnifying party secures the unconditional release of the indemnified party; and provided further that if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party's expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party (which consent will not be unreasonably withheld). Except as expressly stated herein, in connection with any one if an indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 3.5 or 3.6 above, unless and only to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided under Section 3.5 or 3.6 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party’s own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment of all expenses. Such indemnified indemnifying party shall have the right to employ separate counsel in will not settle any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) unless, as a condition to such settlement, the indemnifying party has agreed secures the unconditional release of the indemnified party; and provided further, that, if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to pay such fees and expensesbe represented by separate counsel or that, (ii) upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party’s expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party’s counsel shall be entitled to conduct the indemnifying party’s defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any entitled to indemnity hereunder (an "indemnified party"), such indemnified party hereunder in shall give prompt notice to the party from which such indemnity is sought (the "indemnifying party") of any claim or of the commencement of any proceeding with respect of to which indemnity may be sought from an indemnifying such indemnified party hereunderseeks indemnification or contribution pursuant hereto; provided, such however, that the delay or failure to so notify the indemnifying party shall assume not relieve the indemnifying party from any obligation or liability except to the extent that the indemnifying party has been prejudiced by such delay or failure. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such claim or proceeding, to assume, at the indemnifying party's expense, the defense thereofof any such claim or proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that (i) an indemnified party shall have the right to employ separate counsel in any such action claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless unless: (i1) the indemnifying party has agreed agrees to pay such fees and expenses, ; (ii2) the indemnifying party shall have failed fails promptly to assume the defense of such action claim or proceeding and or fails to employ counsel reasonably satisfactory to such indemnified party, ; or (iii3) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which it that are different from or additional to inconsistent with those available to the indemnifying party or that a conflict of interest is likely to exist among such indemnified party and any other indemnified parties (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, case the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party); it being understoodand (ii) subject to clause (3) above, however, that the indemnifying party shall not, in connection with any one such action claim or proceeding or separate but substantially similar or related actions claims or proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all of the indemnified parties, or for fees and expenses that are not reasonable. Whether or not such indemnified defense is assumed by the indemnifying party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory shall not be subject to the indemnifying party)any liability for any settlement made without its consent. The indemnifying party shall not be liable for consent to entry of any judgment or enter into any settlement unless (i) there is no finding or admission of any such action or proceeding erected without its written consentviolation of any rights of any Person and no effect on any other claims that may be made against the indemnified party, but if settled with its written consent, or if there (ii) the sole relief provided is a final judgment for the plaintiff monetary damages that are paid in any such action or proceeding, full by the indemnifying party shall indemnify and hold harmless (iii) such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release, in form and substance reasonably satisfactory to the indemnified party party, from and against any loss or all liability (to the extent stated above) by reason in respect of such settlement claim or judgmentlitigation for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to Section 8.1 or Section 8.2 of this Agreement, such person (hereinafter called the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (hereinafter called the “indemnifying party party”) in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such the indemnified party shall have been advised by counsel that there may representation of both parties by the same counsel would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified partyparties, which and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the indemnified parties, such firm shall be designated in writing by such all of the indemnified party and reasonably satisfactory to the indemnifying party)parties. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consentconsent (which consent will not be unreasonably withheld), but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the third sentence of this Section 8.3, the indemnifying party agrees that the indemnifying party shall be liable for any settlement of any proceeding effected without the indemnifying party’s written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not either have reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes as an unconditional term thereof a release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If The indemnified party -------------------------------------- shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an indemnifying party hereunder, such indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory but failure to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) so notify the indemnifying party shall not relieve it from any liability which it may have failed under the indemnity agreement provided in Section 2.1 or 2.2 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense of such action or proceeding at such indemnifying party's own expense with counsel chosen by the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld; provided, however, that the indemnifying party -------- ------- will not settle any such action or proceeding without the written consent of the indemnified party unless, as a condition to such settlement, the indemnifying party secures the unconditional release of the indemnified party; and provided -------- further, that if the indemnified party reasonably determines that a conflict of ------- interest exists where it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party's expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party (which consent will not be unreasonably withheld). Except as expressly stated herein, in connection with any one if an indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If The indemnified party shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 2.1 or 2.2 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights or defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 2.1 or 2.2 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party's own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; PROVIDED, HOWEVER, that the payment of all expenses. Such indemnified indemnifying party shall have the right to employ separate counsel in will not settle any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) unless, as a condition to such settlement, the indemnifying party has agreed secures the unconditional release of the indemnified party; and PROVIDED FURTHER, that if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to pay such fees and expensesbe represented by separate counsel or that, (ii) upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party's expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall i) is not have the right so entitled to assume the defense of such action (ii) does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, or proceeding on behalf of such (iii) fails to employ counsel that is reasonably satisfactory to the indemnified party; it being understood, after having received the notice referred to in the first sentence of this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party. In such event, however, that the indemnifying party will not be liable for any settlement effected without the written consent of the indemnifying party, which consent shall notnot be unreasonably withheld. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If any action or proceeding ---------------------------------------- (including any governmental investigationinvestigation or inquiry) shall be brought or any claim shall be asserted against any person entitled to indemnity hereunder (an "indemnified party"), such indemnified party hereunder shall promptly notify the party from which such indemnity is sought (the "indemnifying party") in respect of which indemnity may be sought from an indemnifying party hereunderwriting, such and the indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such the indemnified party, party and shall assume the payment of all expensesfees and expenses incurred in connection with the defense thereof. Such All such fees and expenses (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) incurred by the indemnified party, shall be paid to the indemnified party, as incurred, within 20 days of written notice thereof to the indemnifying party; provided, however, that if, in accordance with this Section 6, the indemnifying ------------------ party is not liable to the indemnified party, such fees and expenses shall be returned promptly to the indemnifying party. Any such indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (ia) the indemnifying party has agreed to pay such fees and expenses, (iib) the indemnifying party shall have failed promptly to assume the defense of such action action, claim or proceeding and to employ counsel reasonably satisfactory to the indemnified party in any such indemnified partyaction, claim or proceeding, or (iiic) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party it which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action action, claim or proceeding on behalf of such indemnified party; , it being understood, however, that the indemnifying party shall not, in connection with any one such action action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all such indemnified partyparties, which firm shall be designated unless in writing by the opinion of counsel for such indemnified party a conflict of interest may exist between such indemnified party and reasonably satisfactory any other of such indemnified parties with respect to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consentaction, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action claim or proceeding, in which event the indemnifying party shall indemnify be obligated to pay the fees and hold harmless expenses of such additional counsel or counsels). No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the release of such indemnified party from and against all liability in respect to such claim or litigation without the written consent (which consent will not be unreasonably withheld) of the indemnified party. No indemnified party shall consent to entry of any loss judgment or liability enter into any set-tlement without the written consent (to which consent will not be unreasonably withheld) of the extent stated above) by reason of such settlement indemnifying party from which indemnity or judgmentcontribution is sought.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an "indemnified party"), such indemnified party hereunder shall promptly notify the party or parties from which such indemnity is sought (the "indemnifying parties") in respect writing; provided, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent (but only to the extent) that it shall be finally determined by a court of competent jurisdiction (which indemnity may be sought from an determination is not subject to appeal) that the indemnifying party hereunder, parties have been prejudiced materially by such failure. The indemnifying party shall assume have the defense thereofright, including the employment of counsel reasonably satisfactory exercisable by giving written notice to such an indemnified party, and shall assume within 20 business days after receipt of written notice from such indemnified party of such Proceeding, to assume, at its expense, the payment defense of all expenses. Such any such Proceeding, provided, that an indemnified party shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless or parties unless: (i1) the indemnifying party has agreed to pay such fees and expenses, ; or (ii2) the indemnifying party shall have failed promptly to assume the defense of such action Proceeding or proceeding and shall have failed to employ counsel reasonably satisfactory to such indemnified party, ; or (iii3) the named parties to any such action or proceeding Proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying partyparty or any of its affiliates or controlling persons, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which that are different from in addition to, or additional to in conflict with, those defenses available to the indemnifying party or such affiliate or controlling person (in which case, if such indemnified party notifies the indemnifying party parties in writing that it elects to employ separate counsel at the expense of the indemnifying partyparties, the indemnifying party parties shall not have the right to assume the defense and the reasonable fees and expenses of such action or proceeding on behalf counsel shall be at the expense of such indemnified the indemnifying party; it being understood, however, that that, the indemnifying party shall not, in connection with any one such action or proceeding Proceeding or separate but substantially similar or related actions or proceedings Proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The No indemnifying party shall not be liable for any settlement of any such action or proceeding erected Proceeding effected without its written consent, but if settled with its written consent, or if there is be a final judgment for the plaintiff in any such action or proceedingProceeding, the each indemnifying party shall jointly and severally agrees, subject to the exceptions and limitations set forth above, to indemnify and hold harmless the each indemnified party from and against any loss or liability (to the extent stated above) and all Losses by reason of such settlement or judgment. The indemnifying party shall not consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release, in form and substance reasonably satisfactory to the indemnified party, from all liability in respect of such Proceeding for which such indemnified party would be entitled to indemnification hereunder (whether or not any indemnified party is a party thereto).

Conduct of Indemnification Proceedings. If Each indemnified party shall give reasonably prompt notice to each indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 3.5 or 3.6 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 3.5 or 3.6 above. If the indemnifying party so elects within a reasonable time after receipt of notice, the indemnifying party may assume the defense thereof, including of the employment of action or proceeding at the indemnifying party’s own expense with counsel reasonably satisfactory to such chosen by the indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment indemnifying party will not settle, compromise or consent to the entry of all expenses. Such any judgment with respect to any such action or proceeding without the written consent of the indemnified party shall have unless such settlement, compromise or consent secures the right to employ separate counsel unconditional release of the indemnified party; provided, further, that if the defendants in any such action and to participate in or proceeding include both the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) and the indemnifying party has agreed and the indemnified party reasonably determine based upon advice of legal counsel experienced in such matters, that there may be legal defenses available to pay such fees and expensesit which are different from or in addition to those available to the indemnifying party, (ii) then the indemnifying party shall have failed not be entitled to assume the defense of the indemnified party and the indemnified party shall be entitled to separate counsel at the indemnifying party’s expense, which counsel shall be chosen by the indemnified party and approved by the indemnifying party, which approval shall not be unreasonably withheld; and provided, further, that it is understood that the indemnifying party shall not be liable for the fees, charges and disbursements of more than one separate firm. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party’s counsel shall be entitled to conduct the indemnifying party’s defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, it being understood that both such counsel will cooperate with each other, to the extent feasible in light of the conflict of interest or (iii) different available legal defenses, to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume the defense, after having received the notice referred to in the first sentence of such indemnified party; it being understoodthis Section 3.7, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in will pay the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time counsel for such the indemnified party; in that event, which firm shall however, the indemnifying party will not be designated in writing by such indemnified party and reasonably satisfactory to liable for any settlement effected without the written consent of the indemnifying party). The If an indemnifying party is entitled to assume, and assumes, the defense of an action or proceeding in accordance with this Section, the indemnifying party shall not be liable for any settlement fees and expenses of any such counsel for the indemnified party incurred thereafter in connection with that action or proceeding erected without its written consent, but if settled with its written consent, or if there is except as set forth in the proviso in the second sentence of this Section 3.7. Unless and until a final judgment for is rendered that an indemnified party is not entitled to the plaintiff in any such action or proceedingcosts of defense under the provisions of this Section, the indemnifying party shall indemnify and hold harmless reimburse, promptly as they are incurred, the indemnified party from and against any loss or liability (to the extent stated above) by reason party’s costs of such settlement or judgmentdefense.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder Person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to this Section 8(c), such Person (the "indemnified party") will promptly notify the Person against whom such indemnity may be sought (the "indemnifying party shall assume party") in writing and the defense thereofindemnifying party, including upon request of the employment of indemnified party, will retain counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall to represent the indemnified party and any others the indemnifying party may designate in such proceeding and will pay the fees and disbursements of such counsel related to such proceeding; provided that the failure of any indemnified party so to notify the indemnifying party will not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually prejudiced by such failure to notify. In any such proceeding, any indemnified party will have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall will be at the expenses expense of such indemnified party unless (i) the indemnifying party has and the indemnified party shall have mutually agreed to pay the retention of such fees and expensescounsel, (ii) the indemnifying party shall have failed within in a reasonable period of time to assume the defense of such action or proceeding and employ retain counsel reasonably satisfactory to such the indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying partyrepresentation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that, and such unless there exists a conflict among indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying partypersons, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, that the indemnifying party shall will not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all indemnified parties and that all such indemnified party, which firm shall fees and expenses will be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party)reimbursed as they are incurred. The indemnifying party shall will not be liable for any settlement of any such action or proceeding erected effected without its prior written consent, but if settled with its written consent, such consent or if there is shall be a final non-appealable judgment for the plaintiff in any such action or proceedingfor which the indemnified person is entitled to indemnification pursuant to this Agreement, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss Loss or liability (to the extent stated above) by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, effect any settlement or compromise of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any entitled to indemnity hereunder (an "indemnified party"), such indemnified party hereunder in shall give prompt notice to the party or parties from which such indemnity is sought (the "indemnifying parties") of the commencement of any action, suit, proceeding or investigation or written threat thereof (a "Proceeding") with respect to which such indemnified party seeks indemnification or contribution pursuant hereto; provided, however, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent that the indemnifying parties have been prejudiced by such failure. The indemnifying parties shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of which indemnity may be sought written notice from an such indemnified party of such Proceeding, to assume, at the indemnifying party hereunderparties' expense, such indemnifying party shall assume the defense thereofof any such Proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that an indemnified party or parties (if more than one such indemnified party is named in any Proceeding) shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless or parties unless: (i1) the indemnifying party has agreed parties agree to pay such fees and expenses, ; (ii2) the indemnifying party shall have failed parties fail promptly to assume the defense of such action Proceeding or proceeding and fail to employ counsel reasonably satisfactory to such indemnified party, party or parties; or (iii3) the named parties to any such action or proceeding Proceeding (including any impleaded parties) include both such indemnified party or parties and the indemnifying parties or an affiliate of the indemnifying parties or such indemnifying partyindemnified parties, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which or parties that are different from or additional to those available to the indemnifying party (parties, in which case, if such indemnified party or parties notifies the indemnifying party parties in writing that it elects to employ separate counsel at the expense of the indemnifying partyparties, the indemnifying party parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of such action or proceeding on behalf of such indemnified party; the indemnifying parties, it being understood, however, that that, unless there exists a conflict among indemnified parties, the indemnifying party parties shall not, in connection with any one such action or proceeding or separate Proceeding but substantially similar or related actions or proceedings Proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified partyparty or parties. Whether or not such defense is assumed by the indemnifying parties, which firm shall be designated in writing by such indemnifying parties or indemnified party and reasonably satisfactory or parties will not be subject to the indemnifying partyany liability for any settlement made without its or their consent (but such consent will not be unreasonably withheld or delayed). The indemnifying parties shall not consent to entry of any judgment or enter into any settlement (i) which provides for other than monetary damages without the consent of the indemnified party or parties (which consent shall not be liable for any settlement unreasonably withheld or delayed) or (ii) that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of any such action or proceeding erected without its written consenta release, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify form and hold harmless substance satisfactory to the indemnified party or parties, from and against any loss or all liability (to the extent stated above) by reason in respect of such settlement or judgmentProceeding for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If The indemnified party shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 2.1 or 2.2 above, such indemnifying party shall assume unless and to the defense thereof, including the employment extent it did not otherwise learn of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate the lack of notice by the indemnified party results in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) forfeiture by the indemnifying party has agreed to pay such fees of any substantial rights and expenses, defenses and (ii) shall not, in any event, relieve the indemnifying party shall have failed from any obligations to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such other than the indemnification obligation provided under Section 2.1 or 2.2 above. If the indemnifying party so elects within a reasonable time after receipt of notice, the indemnifying party, 's own expense with counsel chosen by the indemnifying party and such approved by the indemnified party shall have been advised by reasonably determines upon advice of counsel that a conflict of interest exists where it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be one or more legal defenses available to such indemnified party it which are different from or additional in addition to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, then the indemnifying party shall not have be entitled to assume such defense and the right indemnified party shall be entitled to separate counsel at the indemnifying party's expense, provided, however, it is understood that the indemnifying party shall not be liable for the fees, charges and disbursements of more than one separate firm. If the indemnifying party is not entitled to assume the defense of such the action or proceeding on behalf as a result of such the proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and counsel for the indemnified party shall be entitled to conduct the defense of the indemnified party; , it being understood, however, understood that both such counsel will cooperate with each other to conduct the defense of the action or proceeding as efficiently as possible. If the indemnifying party shall not, in connection with any one such is not so entitled to assume the defense of the action or proceeding or separate but substantially similar or related actions or proceedings does not assume the defense, after having received the notice referred to in the same jurisdiction arising out first sentence of this paragraph, the same general allegations or circumstances, be liable for indemnifying party will pay the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time counsel for such the indemnified party. In that event, which firm shall however, the indemnifying party will not be designated in writing by such indemnified party and reasonably satisfactory to liable for any settlement effected without the written consent of the indemnifying party). The If an indemnifying party is entitled to assume, and assumes the defense of an action or proceeding in accordance with this paragraph, the indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any such connection with that action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If Each indemnified party shall give reasonably prompt notice to each indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 3.5 or 3.6 above, such indemnifying party shall assume unless and to the defense thereof, including the employment extent it did not otherwise learn of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate the lack of notice by the indemnified party results in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) forfeiture by the indemnifying party has agreed to pay such fees of substantial rights and expenses, defenses and (ii) shall not, in any event, relieve the indemnifying party shall have failed from any obligations to the indemnified party other than the indemnification obligation provided under Section 3.5 or 3.6 above. If the indemnifying party so elects within a reasonable time after receipt of notice, the indemnifying party may assume the defense of such the action or proceeding at the indemnifying party's own expense with counsel chosen by the indemnifying party and employ counsel reasonably satisfactory to such approved by the indemnified party, or (iii) which approval shall not be unreasonably withheld; provided, however, that if the named parties to defendants in any such action or proceeding (including any impleaded parties) include both such the indemnified party and such the indemnifying party, party and such the indemnified party shall have been advised by reasonably determines based upon advice of legal counsel experienced in such matters, that there may be one or more legal defenses available to such indemnified party it which are different from or additional in addition to those available to the indemnifying party (in which caseparty, if such then the indemnified party notifies the indemnifying party in writing that it elects shall be entitled to employ separate counsel at the expense of indemnifying party's expense, which counsel shall be chosen by the indemnified party and approved by the indemnifying party, which approval shall not be unreasonably withheld; provided further, that it is understood that the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees fees, charges and expenses disbursements of more than one separate firm firm. If the indemnifying party does not assume the defense, after having received the notice referred to in the first sentence of attorneys (together with appropriate local counsel) at any time this Section, the indemnifying party will pay the reasonable fees and expenses of counsel for such the indemnified party; in that event, which firm shall however, the indemnifying party will not be designated in writing by such indemnified party and reasonably satisfactory to liable for any settlement effected without the written consent of the indemnifying party). The If an indemnifying party assumes the defense of an action or proceeding in accordance with this Section, the indemnifying party shall not be liable for any settlement fees and expenses of any such counsel for the indemnified party incurred thereafter in connection with that action or proceeding erected without its written consent, but if settled with its written consent, or if there is except as set forth in the proviso in the second sentence of this Section 3.7. Unless and until a final judgment for is rendered that an indemnified party is not entitled to the plaintiff in any such action or proceedingcosts of defense under the provisions of this Section, the indemnifying party shall indemnify and hold harmless reimburse, promptly as they are incurred, the indemnified party from and against any loss or liability (to the extent stated above) by reason party's costs of such settlement or judgmentdefense.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Proceeding shall be brought or asserted against any Person entitled to indemnification hereunder (an "INDEMNIFIED PARTY"), such indemnified party hereunder shall promptly notify the party or parties from which such indemnification is sought (the "INDEMNIFYING PARTIES") in respect writing; provided, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent (but only to the extent) that it shall be finally determined by a court of competent jurisdiction (which indemnity may be sought from determination is not subject to appeal) that the indemnifying parties have been prejudiced materially by such failure. The indemnifying parties shall have the right, exercisable by giving written notice to an indemnifying party hereunder, such indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume within 20 Business Days after receipt of written notice from such indemnified party of such Proceeding, to assume, at their expense, the payment defense of all expenses. Such any such Proceeding; provided, that an indemnified party shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless or parties unless: (i) the indemnifying party has parties have agreed to pay such fees and expenses, ; (ii) the indemnifying party parties shall have failed promptly to assume the defense of such action Proceeding or proceeding and shall have failed to employ counsel reasonably satisfactory to such indemnified party, ; or (iii) the named parties to any such action or proceeding Proceeding (including any impleaded parties) include both such indemnified party and such one or more indemnifying partyparties (or any affiliates or controlling persons of any of the indemnifying parties), and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which that are different from in addition to, or additional to in conflict with, those defenses available to the indemnifying party or such affiliate or controlling person (in which case, if such indemnified party notifies the indemnifying party parties in writing that it elects to employ separate counsel at the expense of the indemnifying partyparties, the indemnifying party parties shall not have the right to assume the defense thereof and the reasonable fees and expenses of such action or proceeding on behalf counsel shall be at the expense of such indemnified partythe indemnifying parties; it being understood, however, that the indemnifying party parties shall not, in connection with any one such action or proceeding Proceeding or separate but substantially similar or related actions or proceedings Proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The No indemnifying party shall not be liable for any settlement of any such action or proceeding erected Proceeding effected without its written consent, but if settled with its written consent, or if there is be a final judgment for the plaintiff in any such action or proceedingProceeding, the each indemnifying party shall jointly and severally agrees, subject to the exceptions and limitations set forth above, to indemnify and hold harmless the each indemnified party from and against any loss or liability (to the extent stated above) and all Losses by reason of such settlement or judgment. The indemnifying party shall not consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release, in form and substance reasonably satisfactory to the indemnified party, from all liability in respect of such Proceeding for which such indemnified party would be entitled to indemnification hereunder (whether or not any indemnified party is a party thereto).

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to Section 5.08(a) or (b), such person (hereinafter called the indemnified party) shall promptly notify the person against whom such indemnity may be sought (hereinafter called the indemnifying party party) in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such the indemnified party shall have been advised by counsel that there may representation of both parties by the same counsel would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified partyparties, which and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the indemnified parties, such firm shall be designated in writing by such the indemnified party and reasonably satisfactory to the indemnifying party)parties. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the third sentence of this Section 5.08(c), the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement in entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If Each indemnified party shall give reasonably prompt notice to each indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from hereunder, but failure to so notify an indemnifying party hereundershall not relieve it from any liability which it may have under the indemnity agreement provided in Sections 6.1 or 6.2 above, such indemnifying party shall assume unless the defense thereof, including lack of notice by the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) materially prejudices the indemnifying party has agreed to pay or results in the forfeiture by the indemnifying party of substantial rights and defenses. After receipt of such fees and expensesnotice, (ii) the indemnifying party shall have failed be entitled to participate in and, to the extent it shall wish, jointly with any other indemnifying party so notified, to assume the defense of such action or proceeding at such indemnifying party's own expense with counsel chosen by such indemnifying party and employ counsel reasonably satisfactory to such approved by the indemnified party, or (iii) which approval shall not be unreasonably withheld; provided, however, that, if the named parties to defendants in any such action or proceeding (including any impleaded parties) include both such the indemnified party and such the indemnifying party, party and such the indemnified party shall have been advised by counsel reasonably determines, based upon advice of counsel, that a conflict of interest exists or that there may be one or more legal defenses available to such it or other indemnified party which parties that are different from or additional in addition to those available to the indemnifying party (in which caseparty, if such then the indemnified party notifies shall be entitled to separate counsel (which shall be limited to a single law firm), the reasonable fees and expenses of which shall be paid by the indemnifying party. If the indemnifying party does not assume the defense of any such action or proceeding, after having received the notice referred to in writing that it elects to employ separate counsel at the expense first sentence of the indemnifying partythis paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel (which shall be limited to a single law firm) for the indemnified party. In such event, however, the indemnifying party will not have be liable for any settlement effected without the right to assume written consent of such indemnifying party. If the indemnifying party assumes the defense of any such action or proceeding on behalf of in accordance with this paragraph, such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, except as set forth in the indemnifying party shall indemnify and hold harmless proviso in the indemnified party from and against any loss or liability (to the extent stated above) by reason second sentence of such settlement or judgmentthis Section 6.3.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any entitled to indemnity hereunder (an “indemnified party”), such indemnified party hereunder in shall give prompt notice to the party or parties from which such indemnity is sought (the “indemnifying parties”) of the commencement of any action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which such indemnified party seeks indemnification or contribution pursuant hereto; provided, however, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent that the indemnifying parties have been materially prejudiced by such failure. The indemnifying parties shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of which indemnity may be sought written notice from an such indemnified party of such Proceeding, to assume, at the indemnifying party hereunderparties’ expense, such indemnifying party shall assume the defense thereof, including the employment of any such Proceeding with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that an indemnified party or parties (if more than one such indemnified party is named in any Proceeding) shall have the right to employ separate counsel in any such action Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless or parties unless: (i1) the indemnifying party has agreed parties agree to pay such fees and expenses, ; (ii2) the indemnifying party shall have failed parties fail promptly to assume the defense of such action Proceeding or proceeding and fail to employ counsel reasonably satisfactory to such indemnified party, party or parties; or (iii3) the named parties to any such action or proceeding Proceeding (including any impleaded parties) include both such indemnified party or parties and the indemnifying parties or an affiliate of the indemnifying parties or such indemnifying partyindemnified parties, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which or parties that are different from or additional to those available to the indemnifying party (parties, in which case, if such indemnified party or parties notifies the indemnifying party parties in writing that it elects to employ separate counsel at the expense of the indemnifying partyparties, the indemnifying party parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of such action or proceeding on behalf of such indemnified party; the indemnifying parties, it being understood, however, that that, unless there exists a conflict among indemnified parties, the indemnifying party parties shall not, in connection with any one such action or proceeding or separate but Proceeding and any substantially similar or related actions or proceedings Proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified partyparty or parties. Whether or not such defense is assumed by the indemnifying parties, which firm shall be designated in writing by such indemnifying parties or indemnified party and reasonably satisfactory or parties will not be subject to the indemnifying partyany liability for any settlement made without its or their consent (which consent shall not be unreasonably withheld or delayed). The indemnifying parties shall not consent to entry of any judgment or enter into any settlement which (i) provides for other than monetary damages without the consent of the indemnified party or parties (which consent shall not be liable for any settlement unreasonably withheld or delayed) or (ii) that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of any such action or proceeding erected without its written consenta release, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify form and hold harmless substance satisfactory to the indemnified party or parties, from and against any loss or all liability (to the extent stated above) by reason in respect of such settlement or judgmentProceeding for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If In case any action action, claim or proceeding (including any governmental investigation) shall be brought or asserted against any Person entitled to indemnification hereunder, such indemnified party hereunder in respect of which indemnity may be sought from an shall promptly notify each indemnifying party hereunderin writing, and such indemnifying party shall assume the defense thereof, including the employment of one counsel reasonably satisfactory to such indemnified party, party and shall assume the payment of all expensesfees and expenses incurred in connection with the defense thereof. Such The failure to so notify such indemnifying party shall relieve such indemnifying party of its indemnification obligations to such indemnified party to the extent that such failure to notify materially prejudiced such indemnifying party but not from any liability that it or they may have to the indemnified party for contribution or otherwise. Each indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such each indemnified party unless unless: (i) the such indemnifying party has agreed to pay such fees and expenses, ; (ii) the such indemnifying party shall have has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, ; or (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party or an affiliate or controlling person of such indemnifying party, and such indemnified party shall have been advised in writing by counsel that either (x) there may be one or more legal defenses available to such indemnified party it which are different from or additional in addition to those available to the such indemnifying party or such affiliate or controlling person or (in which case, y) a conflict of interest may exist if such counsel represents such indemnified party notifies the and such indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified partyits affiliate or controlling person; it being understoodprovided, however, that the such indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable responsible hereunder for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for such indemnified party), which firm counsel shall be designated in writing by such indemnified party and reasonably satisfactory to or, in the indemnifying party)event that such indemnified party is a Holder Indemnified Party, by the Holders of a majority of the Registrable Securities included in the subject Registration Statement. The No indemnifying party shall not be liable for any settlement effected without its written consent (which consent may not be unreasonably delayed or withheld). Each indemnifying party agrees that it will not, without the indemnified party’s prior written consent, consent to entry of any such judgment or settle or compromise any pending or threatened claim, action or proceeding erected without its written consentin respect of which indemnification or contribution may be sought hereunder unless the foregoing contains an unconditional release, but if settled with its written consentin form and substance reasonably satisfactory to the indemnified parties, or if there is a final judgment for of the plaintiff in indemnified parties from all liability and obligation arising therefrom. The indemnifying party’s liability to any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against hereunder shall not be extinguished solely because any loss or liability (other indemnified party is not entitled to the extent stated above) by reason of such settlement or judgmentindemnity hereunder.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an indemnifying party hereunderpursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party party") in writing and the indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all indemnified parties, and that all such indemnified party, which fees and expenses shall be reimbursed as they are incurred. Such separate firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders of Notes deemed to be the Holders, for purposes of determining such majority, of the number of shares of Underlying Common Stock into which such Notes are or would be convertible or exchangeable as of the date on which such designation is made) of the Registrable Securities covered by such the Registration Statement held by Holders that are indemnified party and reasonably satisfactory parties pursuant to Section 6(a) and, in the indemnifying partycase of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If Promptly after receipt by an indemnified party under this Section 5.5 of written notice of the commencement of any action action, proceeding, suit or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Note, such indemnified party shall notify in writing the indemnifying party of such commencement or threat; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party (A) hereunder, unless the indemnifying party is actually prejudiced thereby, or (B) otherwise than under this Section 5.5. In case any such action, suit or proceeding (including any governmental investigation) shall be brought or asserted against any indemnified party, and the indemnified party hereunder in respect of which indemnity may be sought from an shall notify the indemnifying party hereunderof the commencement thereof, such the indemnifying party shall be entitled to participate therein and the indemnifying party shall assume the defense thereof, including the employment of with counsel reasonably satisfactory to such the indemnified party, and shall assume the payment of obligation to pay all expensesexpenses relating thereto. Such The indemnified party shall have the right to employ separate counsel in any such action action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (iA) the indemnifying party has agreed to pay such fees and expenses, (iiB) the indemnifying party shall have failed to assume the defense of such action action, suit or proceeding and or to employ counsel reasonably satisfactory to such the indemnified party, party therein or to pay all expenses relating thereto or (iiiC) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnified party and such the indemnifying party, party and such the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such the indemnified party which are different from or additional to those available to the indemnifying party and which may result in a conflict between the indemnifying party and such indemnified party (in which case, if such the indemnified party notifies the indemnifying party in writing that it the indemnified party elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such the indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one such action action, suit or proceeding or separate but substantially similar or related actions actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such the indemnified party, which firm shall be designated in writing by such the indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If any action or proceeding Person shall -------------------------------------- be entitled to indemnity hereunder (including any governmental investigation) shall be brought or asserted against any an "indemnified party"), such indemnified party hereunder in shall give prompt notice to the party from which such indemnity is sought (the "indemnifying party") of any claim or of the commencement of any Proceeding with respect of to which indemnity may be sought from an indemnifying such indemnified party hereunderseeks indemnification or contribu- tion pursuant hereto; provided, such however, that the delay or failure to so notify -------- ------- the indemnifying party shall assume not relieve the indemnifying party from any obliga- tion or liability except to the extent that the indemnifying party has been prejudiced materially by such delay or failure. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such claim or Proceeding, to assume, at the indemnifying party's expense, the defense thereofof any such claim or Proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such however, that an indemnified party shall have the -------- ------- right to employ separate counsel in any such action claim or Proceeding and to participate partici- xxxx in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless unless: (i1) the indemnifying party has agreed agrees to pay such fees and expenses, ; (ii2) the indemnifying party shall have failed fails promptly to assume the defense of such action claim or proceeding and Proceeding or fails to employ counsel reasonably satisfactory to such indemnified party, party or (iii3) counsel for the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies advises the indemnifying party in writing that it elects to employ separate counsel at there are issues that raise conflicts of interest between the expense of indemnified party and the indemnifying party, ; in which case the indemnifying indemnified party shall not have the right to employ counsel and to assume the defense of such action claim or proceeding on behalf of such indemnified partyproceeding; it being understoodprovided, -------- however, that the indemnifying party shall not, in connection with any one such action ------- claim or proceeding Proceeding or separate but substantially similar or related actions claims or proceedings Proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations allega- tions or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all of the indemnified parties, or for fees and expenses that are not reasonable. Whether or not such defense is assumed by the indemnifying party, such indemnified party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). All such fees and expenses (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory as incurred, within five days of written notice thereof to the indemnifying partyparty (regardless of whether it is ultimately deter- mined that an indemnified party is not entitled to indemnification hereunder). The indemnifying party shall not be liable for consent to entry of any judgment or enter into any settlement of or otherwise seek to terminate any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff Proceeding in which any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from is or could be a party and against any loss as to which indemnification or liability (contribution could be sought by such indemnified party under this Section 8, unless such judgment, settlement or other termination includes as an uncondi- tional term thereof the giving by the claimant or plaintiff to such indemnified party of a release, in form and substance reasonably satisfactory to the extent stated above) by reason indem- nified party, from all liability in respect of such settlement claim or judgmentlitigation for which such indemnified party would be entitled to indemnification hereunder.

Conduct of Indemnification Proceedings. If In case any action or proceeding (including any governmental investigation) shall be brought or asserted against instituted involving any indemnified party hereunder person in respect of which indemnity may be sought from an pursuant to Section 6(a) or 6(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, but the omission so to notify the indemnifying party hereunderwill not, such in any event, relieve the indemnifying party from any obligation to any indemnified party otherwise than as provided in (a) or (b) above. The indemnifying party, upon request of the indemnified party, shall assume the defense thereof, including the employment of retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such indemnified party, proceeding and shall assume pay the payment reasonable fees and disbursements of all expensessuch counsel related to such proceeding. Such In any such proceeding, any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereofretain its own counsel, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying indemnified party shall have failed mutually agreed to assume the defense retention of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, or (iiiii) the named parties to any such action or proceeding (including any impleaded parties) include both such the indemnifying party and the indemnified party and such indemnifying party, and such indemnified party shall have been advised representation of both parties by the same counsel that there may would be one inappropriate due to actual or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood, however, potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for all such indemnified party, which parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by, in the case of parties indemnified pursuant to Section 6(a), the Holders of a majority of the Registrable Securities (with Holders of Underlying Common Stock that has been issued upon conversion of any Notes deemed to be the Holders, for purposes of determining such majority, of an aggregate principal amount of Notes (in addition to the principal amount of any Notes held by such indemnified party and reasonably satisfactory Holder) equal to the indemnifying partyquotient of (x) the number of such shares of Underlying Common Stock held by such Holder and (y) the Conversion Rate in effect as of the date such designation is made) covered by the Registration Statement held by Holders that are indemnified parties pursuant to Section 6(a) and, in the case of parties indemnified pursuant to Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent, but if settled with its written consent, such consent or if there is be a final judgment for the plaintiff in any such action or proceedingplaintiff, the indemnifying party shall agrees to indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party (such consent not to be unreasonably withheld), effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

Conduct of Indemnification Proceedings. If Each indemnified party or parties shall give reasonably prompt notice to each indemnifying party or parties of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought hereunder, but which it or they may have under this indemnity agreement, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. If the indemnifying party or parties so elects within a reasonable time after receipt of such notice, the indemnifying party or parties may assume the defense of such action or proceeding at such indemnifying party's or parties' expense with counsel chosen by the indemnifying party or parties and approved by the indemnified party defendant in such action or proceeding, which approval shall not be unreasonably withheld; provided, however, that, if such indemnified party or parties determines in good faith that a conflict of interest exists and that therefore it is advisable for such indemnified party or parties to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it or them which are different from or in addition to those available to the indemnifying party, then the indemnifying party or parties shall not be entitled to assume such defense and the indemnified party or parties shall be entitled to separate counsel (limited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement) at the indemnifying party's or parties' expense. If an indemnifying party hereunder, such indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party, and shall assume the payment of all expenses. Such indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and expenses, (ii) the indemnifying party shall have failed or parties is not so entitled to assume the defense of such action or proceeding and employ counsel reasonably satisfactory does not assume such defense, after having received the notice referred to such indemnified party, or (iii) in the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense first sentence of the indemnifying partythis paragraph, the indemnifying party or parties will pay the reasonable fees and expenses of counsel for the indemnified party or parties (limited in each jurisdiction to one counsel for all Underwriters and another counsel for all other indemnified parties under this Agreement). No indemnifying party or parties will be liable for any settlement effected without the written consent of such indemnifying party or parties, which consent shall not have the right be unreasonably withheld. If an indemnifying party is entitled to assume assume, and assumes, the defense of such action or proceeding on behalf of in accordance with this paragraph, such indemnified party; it being understood, however, that the indemnifying party or parties shall not, except as otherwise provided in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstancesthis subsection (c), be liable for the any fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified parties incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigationinvestigation or inquiry) shall be brought or any claim shall be asserted against any person entitled to indemnity hereunder (an "indemnified party"), such indemnified party hereunder shall promptly notify the party from which such indemnity is sought (the "indemnifying party") in respect of which indemnity may be sought from an indemnifying party hereunderwriting, such and the indemnifying party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such the indemnified party, party and shall assume the payment of all expensesfees and expenses incurred in connection with the defense thereof. Such All such fees and expenses (including any fees and expenses incurred in connection with investigation or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within 20 days of written notice thereof to the indemnifying party; provided, however, that if, in accordance with this Section 8.4.6, the indemnifying party is not liable to the indemnified party, such fees and expenses shall be returned promptly to the indemnifying party. Any such indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (ia) the indemnifying party has agreed to pay such fees and expenses, (iib) the indemnifying party shall have failed promptly to assume the defense of such action action, claim or proceeding and to employ counsel reasonably satisfactory to the indemnified party in any such indemnified partyaction, claim or proceeding, or (iiic) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party it which are different from or additional to those available to the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action action, claim or proceeding on behalf of such indemnified party; , it being understood, however, that the indemnifying party shall not, in connection with any one such action action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all such indemnified partyparties, which firm shall be designated unless in writing by the opinion of counsel for such indemnified party a conflict of interest may exist between such indemnified party and reasonably satisfactory any other of such indemnified parties with respect to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected without its written consentaction, but if settled with its written consent, or if there is a final judgment for the plaintiff in any such action claim or proceeding, in which event the indemnifying party shall indemnify be obligated to pay the fees and hold harmless expenses of such additional counsel or counsels). No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the release of such indemnified party from and against all liability in respect to such claim or litigation without the written consent (which consent will not be unreasonably withheld) of the indemnified party. No indemnified party shall consent to entry of any loss judgment or liability enter into any settlement without the written consent (to which consent will not be unreasonably withheld) of the extent stated above) by reason of such settlement indemnifying party from which indemnify or judgmentcontribution is sought.

Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation) Person shall be brought or asserted against any -------------------------------------- entitled to indemnity under this Section 4.05 (an "indemnified party"), such indemnified party hereunder in shall give prompt notice to the party from whom such indemnity is sought (the "indemnifying party") of any claim or of the commencement of any proceeding with respect of to which indemnity may be sought from an indemnifying such indemnified party hereunderseeks 157 indemnification or contribution pursuant hereto; provided, such however, that the -------- ------- delay or failure to so notify the indemnifying party shall assume not relieve the indemnifying party from any obligation or liability except to the extent that the indemnifying party has been prejudiced by such delay or failure. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after receipt of written notice from such indemnified party of such claim or proceeding, to assume, at the expense of the indemnifying party, the defense thereofof any such claim or proceeding, including the employment of with counsel reasonably satisfactory to such indemnified party; provided, and shall assume the payment of all expenses. Such -------- however, that (i) an indemnified party shall have the right to employ separate ------- counsel in any such action claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such indemnified party unless (iA) the indemnifying party has agreed agrees to pay such fees and expenses, (iiB) the indemnifying party shall have failed fails to assume promptly the defense of such action claim or proceeding and or fails to employ counsel reasonably satisfactory to such indemnified party, party or (iiiC) the named parties to any such action or proceeding (including any impleaded parties) include both such indemnified party and such the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which it that are different from or additional to inconsistent with those available to the indemnifying party or that a conflict of interest is likely to exist among such indemnified party and any other indemnified parties (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, case the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified party; it being understood) and (ii) subject to clause (C) above, however, that the indemnifying party shall not, in connection with any one such action claim or proceeding or separate but substantially similar or related actions claims or proceedings in the same jurisdiction jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys 158 (together with appropriate local counsel) at any time for all the indemnified parties, or for fees and expenses that are not reasonable. Whether or not such defense is assumed by the indemnifying party, such indemnified party shall not be subject to any liability for any settlement made without the consent of such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of any a release, in form and substance reasonably satisfactory to the indemnified party, from all liability in respect of such action claim or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment for the plaintiff in any which such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (would be entitled to the extent stated above) by reason of such settlement or judgmentindemnification hereunder.

Conduct of Indemnification Proceedings. If An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder(i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 4.1 or 4.2 above, unless and only to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided under Section 4.1 or 4.2 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party’s own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment indemnifying party will not settle, compromise or consent to the entry of all expenses. Such indemnified party shall have the right any judgment with respect to employ separate counsel in any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) such settlement, compromise or consent secures the unconditional release of the indemnified party; and provided further, that, if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party has agreed to pay such fees and expensesparty, (ii) then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party’s expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party’s counsel shall be entitled to conduct the indemnifying party’s defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, it being understood that both such counsel will cooperate with each other, to the extent feasible in light of the conflict of interest or (iii) different available legal defenses, to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party. If an indemnifying party is entitled to assume, in connection with any one and assumes, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding (including any governmental investigation) shall be brought or asserted commenced against any indemnified party hereunder it in respect of which indemnity may be sought from an hereunder, but failure to so notify the indemnifying party hereunder, such (i) shall not relieve the indemnifying party from any liability which it may have under the indemnity agreement provided in Sections 3.1 or 3.2, unless and only to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided under Sections 3.1 or 3.2, to the extent provided in clause (i) above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense thereof, including of such action or proceeding at such indemnifying party’s own expense with counsel chosen by the employment of counsel reasonably satisfactory to such indemnifying party and approved by the indemnified party, and which approval shall assume not be unreasonably withheld; provided, however, that the payment indemnifying party will not settle, compromise or consent to the entry of all expenses. Such indemnified party shall have the right any judgment with respect to employ separate counsel in any such action and to participate in or proceeding without the defense thereof, but written consent of the fees and expenses of such counsel shall be at the expenses of such indemnified party unless (i) such settlement, compromise or consent secures the unconditional release of the indemnified party of all liability or obligations at no cost or expense to the indemnified party; and provided further, that, if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party has agreed to pay such fees and expensesparty, (ii) then the indemnifying party shall have failed not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel as selected by the indemnified party, at the indemnifying party’s expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party’s counsel shall be entitled to conduct the indemnifying party’s defense and employ counsel reasonably satisfactory for the indemnified party shall be entitled to such conduct the defense of the indemnified party, or (iii) it being understood that both such counsel will cooperate with each other to conduct the named parties to any defense of such action or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to such indemnified party which are different from or additional to those available to as efficiently as possible. If the indemnifying party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall is not have the right so entitled to assume the defense of such action or proceeding on behalf does not assume such defense, after having received the notice referred to in the first sentence of such this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel as selected by the indemnified party; it being understood. In such event, however, that the indemnifying party shall notwill not be liable for any settlement effected without the written consent of the indemnifying party (which consent will not be unreasonably withheld). If an indemnifying party is entitled to assume, and assumes and conducts reasonably and in connection with any one good faith, the defense of such action or proceeding or separate but substantially similar or related actions or proceedings in accordance with this paragraph, the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party, which firm shall be designated in writing by such indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement fees and expenses of any such action or proceeding erected without its written consent, but if settled with its written consent, or if there is a final judgment counsel for the plaintiff indemnified party incurred thereafter in any connection with such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against any loss or liability (to the extent stated above) by reason of such settlement or judgment.

Conduct of Indemnification Proceedings. If In case any action action, claim or proceeding (including any governmental investigation) shall be brought or asserted against any Person entitled to indemnification hereunder, such indemnified party hereunder in respect of which indemnity may be sought from an shall promptly notify each indemnifying party hereunderin writing, and such indemnifying party shall assume the defense thereof, thereof including the employment of counsel reasonably satisfactory to such indemnified party, party and shall assume the payment of all expensesfees and expenses incurred in connection with the defense thereof. Such The failure to so notify such indemnifying party shall not affect any obligation it may have to any indemnified party under this Agreement or otherwise except to the extent that (as finally determined by a court of competent jurisdiction (which determination is not subject to review or appeal)) such failure materially prejudiced such indemnifying party. Each indemnified party shall have the right to employ separate counsel in any such action action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expenses expense of such each indemnified party unless unless: (i) the such indemnifying party has agreed to pay such fees and expenses, ; (ii) the such indemnifying party shall have has failed promptly to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to such indemnified party, ; or (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both such indemnified party and such indemnifying party or an affiliate or controlling person of such indemnifying party, and such indemnified party shall have been advised by counsel that either (x) there may be one or more legal defenses available to such indemnified party it which are different from or additional in addition to those available to the such indemnifying party or such affiliate or controlling person or (in which case, y) a conflict of interest may exist if such counsel represents such indemnified party notifies the and such indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of such indemnified partyits affiliate or controlling person; it being understoodprovided, however, that the such indemnifying party shall not, in connection with any one such action or proceeding proceeding, or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable responsible hereunder for the fees and expenses of more than one separate firm of attorneys (together with appropriate in addition to any local counsel) at any time for ), which counsel shall be designated by such indemnified party, which firm shall be designated in writing by such . No indemnified party and reasonably satisfactory to the indemnifying party). The indemnifying party shall not be liable for any settlement of any such action or proceeding erected effected without its written consent. Each indemnifying party agrees, but if settled with its jointly and severally, that it will not, without the indemnified party's prior written consent, consent to entry of any judgment or if there is a final judgment for settle or compromise any pending or threatened claim, action or proceeding in respect of which indemnification or contribution may be sought hereunder unless the plaintiff foregoing contains an unconditional release, in form and substance reasonably satisfactory to the indemnified parties, of the indemnified parties from all liability and obligation arising therefrom. The indemnifying party's liability to any such action or proceeding, the indemnifying party shall indemnify and hold harmless the indemnified party from and against hereunder shall not be extinguished solely because any loss or liability (other indemnified party is not entitled to the extent stated above) by reason of such settlement or judgmentindemnity hereunder.