Common use of Defense of Claim Clause in Contracts

Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified by the Company, (ii) Indemnitee’s counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7.

Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (ia) otherwise notified by the Company, (iib) Indemnitee’s counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iiic) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (iib) of the preceding sentence of this Section 7.

Defense of Claim. If (a) Except as otherwise provided below, in the case of any Proceeding asserted action, suit, proceeding or commenced against Indemnitee is also asserted or appeal commenced against the Company or an Affiliated EntityIndemnitee, the Company or the Affiliated Entity shall be entitledentitled to participate therein at its own expense and, except as otherwise provided herein belowto the extent that it may wish, to assume the defense thereof. If the Company wishes to assume the defense of any action, suit, proceeding or appeal hereunder, the Company must give written notice to the Indemnitee of such assumption of defense and of its choice of counsel. Such choice of counsel must be approved in writing by the Indemnitee in his sole discretion, which will not be unreasonably withheld, before the Company’s assumption of defense hereunder may proceed. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any action, suit, proceeding or appeal and the Indemnitee’s approval of the Company’s choice of counsel, the Company shall not be obligated to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of investigation, travel and lodging expenses arising out of the Indemnitee’s participation in such Proceedingaction, suit, proceeding or appeal, except as otherwise provided herein. The Indemnitee shall have the right to employ the Indemnitee’s own counsel in such Proceedingaction, suit, proceeding or appeal, but the Expenses fees and expenses of such counsel incurred after notice from the Company or any Affiliated Entity to the Indemnitee of its assumption of the defense thereof shall be at a the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless expense (i) otherwise notified unless the employment of such counsel has been requested by the Indemnitee and authorized in writing by the Company, or (ii) Indemnitee’s counsel shall have reasonably concluded and so notified unless the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceedingaction, suit, proceeding or appeal, in any of which cases case the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf reasonable fees and expenses of the Company by its stockholders or as to which Indemnitee’s counsel shall have made be at the conclusion set forth in clause (ii) expense of the preceding sentence Company, or (iii) unless counsel for the Indemnitee shall have provided a written opinion to Company in accordance with applicable standards of this Section 7professional conduct that there may be a conflict of interest between the Company and the Indemnitee in the defense of such action, suit, proceeding or appeal; and (iv) except for reasonable costs and expenses for counsel for Indemnitee to monitor proceedings (provided, however, that such counsel for will not appear as counsel of record in any such proceeding).

Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated EntityCompany, the Company or the Affiliated Entity shall be entitledentitled to participate in the Proceeding at its own expense and, except as otherwise provided herein below, to the extent that it may wish the Company shall be entitled to assume the defense thereof. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense Expenses of Indemnitee Indemnitee, and the Company shall may not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than the reasonable costs of investigation and reasonable investigation, travel and lodging expenses Expenses arising out of Indemnitee’s 's participation in the defense of such Proceeding, Proceeding unless (i) otherwise notified authorized by the Company, (ii) Indemnitee’s 's counsel shall have reasonably concluded concluded, and so notified the Company in writing, that there is may be a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of the defense of such Proceeding, Proceeding or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any . If the Company may be obligated for some or all of which cases the Expenses of Indemnitee in such Proceeding under this Section 8, the determination of Indemnitee's entitlement to indemnification shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this accordance with Section 73.

Defense of Claim. If Notwithstanding any Proceeding asserted other provision of this Agreement, with respect to any such legal action or commenced against proceeding to which an Indemnitee is also asserted or commenced against gives notice to the Company or an Affiliated Entity, Corporation of the Company or the Affiliated Entity shall commencement thereof: (a) The Corporation will be entitled, entitled to participate therein at its own expense; and (b) except as otherwise provided herein belowin this Section 13.2, to the extent that it wishes, the Corporation, jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee. After notice from the Company or any Affiliated Entity Corporation to an Indemnitee of its election to so assume the defense of any such action or proceeding, the Corporation shall not be liable to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than the costs of investigation or as otherwise provided below, provided that the Indemnitee approves counsel to be engaged by the Corporation therein. Indemnitee shall have the right to employ its own counsel in any such legal action or proceeding, however, the fees and expenses of such counsel following the date of Indemnitee's approval of the Corporation's counsel therein shall be at the expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee has been authorized by the Corporation, (ii) counsel for the Corporation shall reasonably conclude that there may be a conflict of interest between the Corporation and the Indemnitee in the conduct of the defense of such action or proceeding, such that under the applicable code of professional responsibility the same counsel cannot represent both the Corporation and the Indemnitee, or (iii) the Corporation shall not in fact have employed counsel approved by Indemnitee to assume the defense of any such Proceedingaction or proceeding, Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceedingeach of which cases, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption all of the defense thereof fees and expenses of Indemnitee's counsel shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified by the Company, (ii) Indemnitee’s counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7Corporation.

Defense of Claim. If any Proceeding asserted or commenced against ---------------- Indemnitee is also asserted or commenced against the Company or an Affiliated EntityCompany, the Company or the Affiliated Entity shall be entitledentitled to participate in the Proceeding at its own expense and, except as otherwise provided herein below, to the extent that it may wish the Company shall be entitled to assume the defense thereof. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense Expenses of Indemnitee Indemnitee, and the Company shall may not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than the reasonable costs of investigation and reasonable investigation, travel and lodging expenses Expenses arising out of Indemnitee’s 's participation in the defense of such Proceeding, Proceeding unless (i) otherwise notified authorized by the Company, (ii) Indemnitee’s 's counsel shall have reasonably concluded concluded, and so notified the Company in writing, that there is may be a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of the defense of such Proceeding, Proceeding or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any . If the Company may be obligated for some or all of which cases the Expenses of Indemnitee in such Proceeding under this Section 8, the determination of Indemnitee's entitlement to indemnification shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this accordance with Section 73.

Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided contemplated herein belowby the other provisions of this Section 8, to assume the defense thereof. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee shall have the right to employ Indemnitee’s own legal counsel in such Proceeding, but the Expenses of such legal counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and and, notwithstanding any provision of this Agreement to the contrary, the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable and documented travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (ia) otherwise notified by the Company, (iib) Indemnitee’s legal counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iiic) the Company or any Affiliated Entity shall not in fact have employed legal counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s legal counsel shall have made the conclusion set forth in clause (iib) of the preceding sentence of this Section 78.

Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entityclaim for indemnification by any indemnified party arises out of a claim by a person other than such indemnified party, the Company indemnifying party may, by written notice to the indemnified party, undertake to conduct any proceedings or negotiations in connection therewith or necessary to defend the Affiliated Entity indemnified party and take all other steps or proceedings to settle or contest such claim, including without limitation the employment of counsel; provided, however, that the indemnifying party shall be entitled, except reasonably consider the advice of the indemnified party as otherwise provided herein below, to assume the defense thereof. After notice from and settlement of such claim and the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee indemnified party shall have the right to employ Indemnitee’s participate, at its own counsel expense, in such Proceedingdefense, but the Expenses control of such counsel incurred after notice from litigation and settlement shall remain with the Company indemnifying party. The indemnified party shall provide all reasonable cooperation in connection with any such defense by the indemnifying party. Counsel and auditor fees, filing fees and court fees of all proceedings, contests or lawsuits with respect to any Affiliated Entity such claim shall be borne by the indemnifying party. If any such claim is made hereunder and the indemnifying party elects not to Indemnitee of its assumption of undertake the defense thereof by written notice to the indemnified party, the indemnified party shall be at entitled to indemnification with respect thereto pursuant to the expense terms of Indemnitee and this Article X. To the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in extent that the indemnifying party undertakes the defense of such Proceedingclaim by written notice to the indemnified party and diligently pursues such defense at its expense, unless (i) otherwise notified by the Company, (ii) Indemnitee’s counsel indemnified party shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume indemnification hereunder only to the extent that such defense is unsuccessful as determined by a final judgment of any Proceeding brought a court of competent jurisdiction, or by or on behalf written acknowledgment of the Company parties. If any claim for indemnification by its stockholders or as Purchaser arises out of a claim by Purchaser, then Purchaser shall be entitled to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this immediate indemnification hereunder pursuant to Section 710.05 hereof.

Defense of Claim. If a. Except as otherwise provided below, in the case of any Proceeding asserted action, suit, proceeding or commenced against Indemnitee is also asserted or appeal commenced against the Company or an Affiliated EntityIndemnitee, the Company or the Affiliated Entity shall be entitledentitled to participate therein at its own expense and, except as otherwise provided herein belowto the extent that it may wish, to assume the defense thereof. If the Company wishes to assume the defense of any action, suit, proceeding or appeal hereunder, the Company must give written notice to the Indemnitee of such assumption of defense and of its choice of counsel. Such choice of counsel must be approved in writing by the Indemnitee in his sole discretion, which will not be unreasonably withheld, before the Company's assumption of defense hereunder may proceed. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any action, suit, proceeding or appeal and the Indemnitee's approval of the Company's choice of counsel, the Company shall not be obligated to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of investigation, travel and lodging expenses arising out of the Indemnitee's participation in such Proceedingaction, suit, proceeding or appeal, except as otherwise provided herein. The Indemnitee shall have the right to employ the Indemnitee’s 's own counsel in such Proceedingaction, suit, proceeding or appeal, but the Expenses fees and expenses of such counsel incurred after notice from the Company or any Affiliated Entity to the Indemnitee of its assumption of the defense thereof shall be at a the Indemnitee's expense (i) unless the employment of such counsel has been requested by the Indemnitee and authorized in writing by the Company, or (ii) unless the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified by the Company, (ii) Indemnitee’s counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceedingaction, suit, proceeding or appeal, in any which case the reasonable fees and expenses of which cases the Expenses Indemnitee's counsel shall be at the expense of the Company, or (iii) unless counsel for the Indemnitee shall have concluded that there may be a conflict or interest between the Company and the Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of such action, suit, proceeding or appeal; and (iv) except for reasonable costs and expenses for counsel for Indemnitee to monitor proceedings (provided, however, that such counsel for will not appear as counsel of record in any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7such proceeding).

Defense of Claim. If In the event that the Company shall be obligated under Section 6 hereof to pay the Expenses of any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from and the Company or any Affiliated Entity other person entitled to Indemnitee of its election indemnification by the Company is a party to the Proceeding, the Company shall be entitled to assume the defense of any such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding at Indemnitee’s own expense; and (ii) if (A) the employment of counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified has been previously authorized by the Company, or (iiB) Indemnitee’s counsel Independent Counsel shall have reasonably concluded and so notified the Company that there is may be a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceedingdefense, or (iiiC) the Company or any Affiliated Entity shall not not, in fact fact, have employed counsel to assume the defense of such Proceeding, in then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company. If the Company assumes the defense of any of which cases Proceeding, the Expenses of Company shall be obligated to defend all claims against Indemnitee in such Proceeding in good faith and in a manner consistent with the best interests of Indemnitee, and the Company shall be reimbursed not settle or paid by compromise any claims on any basis or in any manner which would impose any liability, limitation or restriction of any kind on Indemnitee without Indemnitee’s express written consent. Regardless of any provision in this Agreement, Indemnitee shall have the Companyright to employ counsel in any Proceeding at Indemnitee’s personal expense. The Company or any Affiliated Entity shall not be entitled entitled, without the consent of Indemnitee, to assume the defense of any Proceeding claim brought by or on behalf in the right of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7Company.

Defense of Claim. If (a) Except as otherwise provided below, in the case of any Proceeding asserted action, suit, proceeding or commenced against Indemnitee is also asserted or appeal commenced against the Company or an Affiliated EntityIndemnitee, the Company or the Affiliated Entity shall be entitledentitled to participate therein at its own expense and, except as otherwise provided herein belowto the extent that it may wish, to assume the defense thereof. If the Company wishes to assume the defense of any action, suit, proceeding or appeal hereunder, the Company must give written notice to the Indemnitee of such assumption of defense and of its choice of counsel. Such choice of counsel must be approved in writing by the Indemnitee in his sole discretion, which will not be unreasonably withheld, before the Company's assumption of defense hereunder may proceed. After notice from the Company or any Affiliated Entity to Indemnitee Indenmitee of its election to assume the defense of any action, suit, proceeding or appeal and the Indemmitee's approval of the Company's choice of counsel, the Company shall not be obligated to the Indemnitee under this Agreement for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of investigation, travel and lodging expenses arising out of the Indemnitee's participation in such Proceedingaction, suit, proceeding or appeal, except as otherwise provided herein. The Indemnitee shall have the right to employ the Indemnitee’s 's own counsel in such Proceedingaction, suit, proceeding or appeal, but the Expenses fees and expenses of such counsel incurred after notice from the Company or any Affiliated Entity to the Indemnitee of its assumption of the defense thereof shall be at a the Indemnitee's expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified unless the employment of such counsel has been requested by the Indemnitee and authorized in writing by the Company, or (ii) Indemnitee’s counsel shall have reasonably concluded and so notified unless the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceedingaction, suit, proceeding or appeal, in any which case the reasonable fees and expenses of which cases the Expenses Indemnitee's counsel shall be at the expense of the Company, or (iii) unless counsel for the Indemnitee shall have provided a written opinion to Company in accordance with applicable standards of professional conduct that there may be a conflict of interest between the Company and the Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of such action, suit, proceeding or appeal; and (iv) except for reasonable costs and expenses for counsel for Indemnitee to monitor proceedings (provided, however, that such counsel for will not appear as counsel of record in any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7such proceeding).

Defense of Claim. If any Proceeding asserted action, suit or proceeding, or any claim thereof, commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated EntityCorporation, the Company or the Affiliated Entity Corporation shall be entitledentitled to participate therein at its own expense and, except as otherwise provided herein below, to the extent that it may wish, the Corporation shall be entitled to assume the defense thereof. After notice from the Company or any Affiliated Entity Corporation to Indemnitee of its election to assume the defense of any action, suit or proceeding, the Corporation shall not be obligated to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation, travel and lodging expenses arising out of Indemnitee's participation in such Proceedingaction, suit or proceeding. Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceedingaction, suit or proceeding, but the Expenses fees and expenses of such counsel incurred after notice from the Company or any Affiliated Entity Corporation to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified authorized by the CompanyCorporation, (ii) Indemnitee’s counsel Indemnitee shall have reasonably concluded concluded, and so notified the Company Corporation, that there is may be a conflict of interest between the Company or any Affiliated Entity Corporation and Indemnitee in the conduct of the defense of such Proceedingaction, suit or proceeding, or (iii) the Company or any Affiliated Entity Corporation shall not in fact have employed counsel to assume the defense of such Proceedingaction, suit or proceeding, in any of which cases the Expenses fees and expenses of Indemnitee in such Proceeding Indemnitee's counsel shall be reimbursed or paid by at the Companyexpense of the Corporation. The Company or any Affiliated Entity Corporation shall not be entitled to assume the defense of any Proceeding action, suit or proceeding brought by or on behalf of the Company by Corporation or its stockholders or as to which Indemnitee’s counsel Indemnitee shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7paragraph 12.

Defense of Claim. If In the event that the Company shall be obligated under Section 5 hereof to pay the Expenses of any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from and the Company or any Affiliated Entity other person entitled to Indemnitee of its election indemnification by the Company is a party to the Proceeding, the Company shall be entitled to assume the defense of any such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the right to employ Indemnitee’s own his or her counsel in any such Proceeding, but Proceeding at Indemnitee's expense; and (ii) if (A) the Expenses employment of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified has been previously authorized by the Company, or (iiB) Indemnitee’s counsel Indemnitee shall have reasonably concluded and so notified the Company that there is may be a conflict of interest between the Company or any Affiliated Entity and the Indemnitee in the conduct of defense of such Proceedingdefense, or (iiiC) the Company or any Affiliated Entity shall not not, in fact fact, have employed counsel to assume the defense of such Proceeding, in then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. If the Company assumes the defense of any of which cases Proceeding, the Expenses of Company shall be obligated to defend all claims against Indemnitee in such Proceeding shall be reimbursed or paid by in good faith and in a manner consistent with the Company. The best interests of Indemnitee, and the Company or any Affiliated Entity shall not be entitled to assume the defense settle or compromise any claims on any basis or in any manner which would impose any liability, limitation or restriction of any Proceeding brought by or kind on behalf of the Company by its stockholders or as to which Indemnitee without Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7's express written consent.

Defense of Claim. If any Proceeding Action asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated EntityCorporation, the Company or the Affiliated Entity Corporation shall be entitledentitled to participate therein at its own expense and, except as otherwise provided herein below, to the extent that it may wish, the Corporation shall be entitled to assume the defense thereof. After notice from the Company or any Affiliated Entity Corporation to Indemnitee of its election to assume the defense of any such ProceedingAction, Indemnitee shall have the right to employ Indemnitee’s own counsel in such ProceedingAction, but the Expenses fees and expenses of such counsel incurred after notice from the Company or any Affiliated Entity Corporation to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee Indemnitee, and the Company Corporation shall not be obligated to Indemnitee under this Agreement for any Expenses expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such ProceedingAction, unless (i) otherwise notified authorized by the CompanyCorporation, (ii) Indemnitee’s counsel shall have reasonably concluded concluded, and so notified the Company Corporation, that there is may be a conflict of interest between the Company or any Affiliated Entity Corporation and Indemnitee in the conduct of the defense of such Proceeding, Action or (iii) the Company or any Affiliated Entity Corporation shall not in fact have employed counsel to assume the defense of such ProceedingAction, in any of which cases the Expenses of Indemnitee in such Proceeding Action shall be reimbursed or paid advanced by the CompanyCorporation. The Company or any Affiliated Entity Corporation shall not be entitled to assume the defense of any Proceeding Action brought by or on behalf of the Company Corporation by its stockholders shareholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 711.

Defense of Claim. If any Proceeding Claim is asserted or commenced by any third party against Indemnitee is also asserted or commenced against the Company or an Affiliated Entityany Purchaser Indemnitee, the Company or and Newco shall have the Affiliated Entity shall be entitledright, except as unless otherwise provided herein belowprecluded by Applicable Law, to assume conduct and control the defense thereof. After notice from the Company defense, compromise, or any Affiliated Entity to Indemnitee settlement of its election to assume the defense such Claim or threatened Claim in respect of any such Proceeding, matters embraced by their indemnity obligations in this Article V. The Purchaser Indemnitee shall have the right to employ Indemnitee’s own counsel separate from counsel employed by the Company and Newco in connection with any such ProceedingClaim or threatened Claim and to participate in the defense of such Claim, but the Expenses fees and expenses of such counsel incurred after notice from employed by the Purchaser Indemnitee shall be at its sole expense unless: (i) the Company or Newco shall have elected not, or after reasonable written notice shall have failed, to assume the defense of such Claim, (ii) the engagement of such counsel has been specifically authorized by the Company or Newco in writing, or (iii) the parties to any Affiliated Entity such Claim or threatened Claim (including any impleaded parties) include both the Company or Newco and the Purchaser Indemnitee and the Purchaser Indemnitee shall have been advised in writing by its counsel that there may be one or more defenses available to the Purchaser Indemnitee that are unavailable to the Company and Newco or legal conflicts of its assumption interest pursuant to applicable rules of professional conduct between the Company and Newco and the Purchaser Indemnitee. In the case of the defense thereof events referred to in Clauses (i), (ii), or (iii), the fees and expenses of such counsel engaged by the Purchaser Indemnitee shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified by the Company, (ii) Indemnitee’s counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the CompanyNewco. The Company and Newco shall not, without the written consent of the Purchaser Indemnitee, settle or compromise any Affiliated Entity shall not be entitled Claim or threatened Claim, or consent to assume the defense entry of any Proceeding brought judgment, that does not include as an unconditional term the giving by the claimant or on behalf the plaintiff to the Purchaser Indemnitee a release from all liability in respect of such Claim or threatened Claim. The Purchaser Indemnitee may not settle or compromise any Claim or threatened Claim without the written consent of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7and Newco.

Defense of Claim. If (a) Except as otherwise provided below, in the case of any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated EntityIndemnitee, the Company or the Affiliated Entity shall be entitledentitled to participate therein at its own expense and, except as otherwise provided herein belowto the extent that it may wish, to assume the defense thereof. If the Company wishes to assume the defense of any Proceeding hereunder, the Company must give written notice to the Indemnitee of such assumption of defense and of its choice of counsel. Such choice of counsel must be approved in writing by the Indemnitee in his or her sole discretion, which will not be unreasonably withheld nor delayed, before the Company’s assumption of defense hereunder may proceed. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any Proceeding and the Indemnitee’s approval of the Company’s choice of counsel, the Company shall not be obligated to the Indemnitee under this Agreement for any Defense Expenses subsequently incurred by the Indemnitee in connection with the defense of the Proceeding, other than reasonable cost of investigation, travel and lodging Defense Expenses arising out of the Indemnitee’s participation in such Proceeding, or as otherwise provided herein. The Indemnitee shall have the right to employ employee Indemnitee’s own independent counsel in such Proceeding, Proceeding but the fees and Defense Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to the Indemnitee of its assumption of the defense thereof of the Proceeding shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless expense (i) otherwise notified unless the employment of such counsel has been requested by the Indemnitee and authorized in writing by the Company, or (ii) Indemnitee’s counsel shall have reasonably concluded and so notified unless the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall company has not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases case the reasonable fees and Defense Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel shall have made be at the conclusion set forth in clause (ii) expense of the preceding sentence Company, or (iii) unless counsel for the Indemnitee has provided a written opinion to Company in accordance with applicable standards of this Section 7professional conduct that there may be a conflict of interest between the Company and the Indemnitee in the defense of such Proceeding; and (iv) except for reasonable cost and Defense Expenses of counsel for Indemnitee to monitor the Proceeding (provided, however, that such counsel for Indemnitee will not appear as counsel of record in ay such Proceeding).

Defense of Claim. If The Company shall be entitled to participate in the defense of any Proceeding asserted relating to an Indemnifiable Claim or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from ; provided that if (i) the Indemnitee reasonably determines that the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any Affiliated Entity such Proceeding (including any impleaded parties) include both the Company and Indemnitee and Indemnitee reasonably concludes that there may be one or more legal defenses available to such Indemnitee that are different from or in addition to those available to the Company, or (iii) any such representation by such counsel would be precluded under the applicable standards of its election professional conduct then prevailing, then Indemnitee shall be entitled to assume the defense retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such particular Proceeding, Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be ) at the expense of Indemnitee and the Company’s expense. The Company shall not be obligated liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee amounts paid in connection therewith other than reasonable costs settlement of investigation and reasonable travel and lodging expenses arising out any Proceeding relating to an Indemnifiable Claim effected without the Company’s prior written consent. The Company shall not, without the prior written consent of Indemnitee’s participation in , effect any settlement of any Proceeding relating to an Indemnifiable Claim which Indemnitee is or could have been a party unless such settlement solely involves the defense payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that are the subject matter of such Proceeding, unless (i) otherwise notified by the Company, (ii) which release shall be in form and substance reasonably satisfactory to Indemnitee’s counsel shall have reasonably concluded and so notified . Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided that there is Indemnitee may withhold consent to any settlement that does not provide a conflict complete and unconditional release of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the CompanyIndemnitee. The Company agrees to stipulate in any court or before any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of arbitrator that the Company is bound by its stockholders or as to which Indemnitee’s counsel shall have made all the conclusion set forth in clause (ii) of the preceding sentence provisions of this Section 7Agreement and is precluded from making any assertions to the contrary.

Defense of Claim. If With respect to any Proceeding asserted or commenced against as to which Indemnitee is also asserted or commenced against has provided notice to the Company or an Affiliated Entitypursuant to Section 1(f): a. The Company may participate therein at its own expense. b. The Company, the Company or the Affiliated Entity shall be entitledjointly with any other indemnifying party similarly notified, except as otherwise provided herein below, to may assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Company or any Affiliated Entity to Indemnitee of its election to so assume the defense of any such Proceedingthereof, Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated liable to Indemnitee under this Agreement for any Expenses legal fees or other expenses (other than reasonable costs of investigation) subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in with the defense of such Proceeding, thereof unless (i) otherwise notified the employment of counsel by Indemnitee or the incurring of such expenses has been authorized by the Company, (ii) Indemnitee’s counsel Indemnitee shall have reasonably concluded and so notified the Company that there is may be a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of the defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any each of which cases the Expenses legal fees and other expenses of Indemnitee in such Proceeding shall be reimbursed or paid by at the expense of the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any a Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel Indemnitee shall have made reached the conclusion set forth described in clause (ii) above. c. The Company shall not be liable for any amounts paid in settlement of any Proceeding effected without its written consent. d. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. e. Neither the preceding sentence Company nor Indemnitee will unreasonably withhold its or his consent to any proposed settlement of this Section 7any Proceeding. 5.

Defense of Claim. If any Proceeding Action asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated EntityCorporation, the Company or the Affiliated Entity Corporation shall be entitledentitled to participate therein at its own expense and, except as otherwise provided herein below, to the extent that it may wish, the Corporation shall be entitled to assume the defense thereof. After notice from the Company or any Affiliated Entity Corporation to Indemnitee of its election to assume the defense of any such ProceedingAction, Indemnitee shall have the right to employ Indemnitee’s own counsel in such ProceedingAction, but the Expenses fees and expenses of such counsel incurred after notice from the Company or any Affiliated Entity Corporation to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee Indemnitee, and the Company Corporation shall not be obligated to Indemnitee under this Agreement for any Expenses expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such ProceedingAction, unless (i) otherwise notified authorized by the CompanyCorporation, (ii) Indemnitee’s counsel shall have reasonably concluded concluded, and so notified the Company Corporation, that there is may be a conflict of interest between the Company or any Affiliated Entity Corporation and Indemnitee in the conduct of the defense of such Proceeding, Action or (iii) the Company or any Affiliated Entity Corporation shall not in fact have employed counsel to assume the defense of such ProceedingAction, in any of which cases the Expenses of Indemnitee in such Proceeding Action shall be reimbursed or paid advanced by the CompanyCorporation to the extent required under this Agreement. The Company or any Affiliated Entity Corporation shall not be entitled to assume the defense of any Proceeding Action brought by or on behalf of the Company Corporation by its stockholders shareholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 711.

Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the (a) The Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, entitled to participate in the defense of any claim relating to an indemnifiable event or to assume the defense thereof. After notice from , with counsel reasonably satisfactory to Indemnitee; provided that, if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (i) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any such claim (including any impleaded parties) include the Company or any Affiliated Entity subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee concludes, after consultation with counsel selected by Indemnitee, that there may be one or more legal defenses available to Indemnitee of its election him that are different from or in addition to assume the defense of any such Proceeding, Indemnitee shall have the right those available to employ Indemnitee’s own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption subsidiary of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified by the Company, (ii) Indemnitee’s counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) any such representation by such counsel would be precluded under the Company or any Affiliated Entity applicable standards of professional conduct then prevailing, then Indemnitee shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any Proceeding brought by particular claim) at the Company’s expense. Notwithstanding any other provision of this Agreement, the Company shall not, without the prior written consent of Indemnitee, settle any threatened or on behalf pending indemnifiable claim which the Indemnitee is or could have been a party to unless such settlement solely involves the payment of money and includes a full and final release of the Company by its stockholders or as to which Indemnitee’s counsel Indemnitee from all claims that are the subject matter of such indemnifiable claim. The Indemnitee shall have made not, without the conclusion set forth in clause (ii) prior written consent of the preceding sentence Company, settle any threatened or pending indemnifiable claim. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a full and final release of this Section 7.Indemnitee

Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s 's participation in the defense of such Proceeding, unless (i) otherwise notified by the Company, (ii) Indemnitee’s 's counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and -4- Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s 's counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7.

Defense of Claim. If The Company shall be entitled to participate in the defense of any Proceeding asserted relating to an Indemnifiable Claim or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from ; provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee (the fees and other costs of which shall be paid by the Company and be Expenses for all purposes under this Agreement), that (i) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any Affiliated Entity such Proceeding (including any impleaded parties) include both the Company and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (iii) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee of its election shall be entitled to assume the defense retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such particular Proceeding, Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be ) at the expense of Indemnitee and the Company’s expense. The Company shall not be obligated liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee amounts paid in connection therewith other than reasonable costs settlement of investigation and reasonable travel and lodging expenses arising out any Proceeding relating to an Indemnifiable Claim effected without the Company’s prior written consent. The Company shall not, without the prior written consent of Indemnitee’s participation in , effect any settlement of any Proceeding relating to an Indemnifiable Claim which Indemnitee is or could have been a party unless such settlement solely involves the defense payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that are the subject matter of such Proceeding, unless (i) otherwise notified by the Company, (ii) which release shall be in form and substance reasonably satisfactory to Indemnitee’s counsel shall have reasonably concluded and so notified . Neither the Company nor Indemnitee shall unreasonably withhold its or his or her consent to any proposed settlement; provided that there is Indemnitee may withhold consent to any settlement that does not provide a conflict complete and unconditional release of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the CompanyIndemnitee. The Company agrees to stipulate in any court or before any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of arbitrator that the Company is bound by its stockholders or as to which Indemnitee’s counsel shall have made all the conclusion set forth in clause (ii) of the preceding sentence provisions of this Section 7Agreement and is precluded from making any assertions to the contrary.

Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee shall have the right to employ Indemnitee’s 's own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s 's participation in the defense of such Proceeding, unless (i) otherwise notified by the Company, (ii) Indemnitee’s 's counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iii) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s 's counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7.

Defense of Claim. If In the event that the Company shall be obligated under Section 5 hereof to pay the Expenses of any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from and the Company or any Affiliated Entity other person entitled to Indemnitee of its election indemnification by the Company is a party to the Proceeding, the Company shall be entitled to assume the defense of any such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding at Indemnitee’s own expense; and (ii) if (A) the employment of counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (i) otherwise notified has been previously authorized by the Company, or (iiB) Indemnitee’s counsel Indemnitee shall have reasonably concluded and so notified the Company that there is may be a conflict of interest between the Company or any Affiliated Entity and the Indemnitee in the conduct of defense of such Proceedingdefense, or (iiiC) the Company or any Affiliated Entity shall not not, in fact fact, have employed counsel to assume the defense of such Proceeding, in then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company. If the Company assumes the defense of any of which cases Proceeding, the Expenses of Company shall be obligated to defend all claims against Indemnitee in such Proceeding shall be reimbursed or paid by in good faith and in a manner consistent with the Company. The best interests of Indemnitee, and the Company or any Affiliated Entity shall not be entitled to assume the defense settle or compromise any claims on any basis or in any manner which would impose any liability, limitation or restriction of any Proceeding brought by or kind on behalf of the Company by its stockholders or as to which Indemnitee without Indemnitee’s counsel shall have made the conclusion set forth in clause (ii) of the preceding sentence of this Section 7express written consent.

Defense of Claim. If any Proceeding asserted or commenced against Indemnitee is also asserted or commenced against the Company or an Affiliated Entity, the Company or the Affiliated Entity shall be entitled, except as otherwise provided herein below, to assume the defense thereof. After notice from the Company or any Affiliated Entity to Indemnitee of its election to assume the defense of any such Proceeding, Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the Expenses of such counsel incurred after notice from the Company or any Affiliated Entity to Indemnitee of its assumption of the defense thereof shall be at the expense of Indemnitee and and, notwithstanding any provision of this Agreement to the contrary, the Company shall not be obligated to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee in connection therewith other than reasonable costs of investigation and reasonable travel and lodging expenses arising out of Indemnitee’s participation in the defense of such Proceeding, unless (ia) otherwise notified by the Company, (iib) Indemnitee’s counsel shall have reasonably concluded and so notified the Company that there is a conflict of interest between the Company or any Affiliated Entity and Indemnitee in the conduct of defense of such Proceeding, or (iiic) the Company or any Affiliated Entity shall not in fact have employed counsel to assume the defense of such Proceeding, in any of which cases the Expenses of Indemnitee in such Proceeding shall be reimbursed or paid by the Company. The Company or any Affiliated Entity shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company by its stockholders or as to which Indemnitee’s counsel shall have made the conclusion set forth in clause (iib) of the preceding sentence of this Section 78.