Common use of Notification and Defense of Proceedings Clause in Contracts

Notification and Defense of Proceedings. Participant agrees that he will use all reasonable efforts to notify the Company promptly after receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel satisfactory to Participant. After notice from the Company to Participant of its election to assume the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant shall have the right to employ its counsel in such proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant unless (i) the employment of counsel by Participant has been authorized by the Company, (ii) Participant shall have reasonably concluded that there may be a conflict of interest between the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable to indemnify Participant under this Agreement for any amounts paid in settlement of any proceeding effected by Participant without the Company’s prior written consent. The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant without Participant’s prior written consent. Neither the Company nor Participant will unreasonably withhold their consent to any proposed settlement.

Notification and Defense of Proceedings. Participant agrees that he will use all reasonable efforts to notify the Company promptly (a) As soon as reasonably practicable after receipt by Participant the Indemnitee of written notice of the commencement that he or she is a party to or a participant (as a witness or otherwise) in any Proceeding or of any proceeding if he anticipates that a request for indemnification other matter in respect thereof is of which the Indemnitee intends to be made against seek indemnification or Expense Advance hereunder, the Indemnitee shall provide to the Company under this Agreement; but failure written notice thereof, including the nature of and the facts underlying such Proceeding or matter. The omission by the Indemnitee to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Indemnitee hereunder or otherwise unless the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; andis materially prejudiced by such omission. (b) except as otherwise provided belowThe Company shall be entitled, at its option and expense, either to participate in the defense of any Proceeding relating to an Indemnifiable Event or, upon written notice to the extent that it may wishIndemnitee, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, thereof with counsel reasonably satisfactory to Participant. After notice from the Company to Participant Indemnitee and after delivery of its election to assume the defense thereofsuch notice, the Company will shall not be liable to Participant the Indemnitee under this Agreement for any legal fees or other expenses of counsel subsequently incurred by Participant in connection the Indemnitee with respect to such Proceeding; provided that (i) the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant Indemnitee shall have the right to employ its retain separate counsel in such proceeding, but the fees and expenses respect of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be Proceeding at the Indemnitee’s expense of Participant unless (i) the employment of counsel by Participant has been or, if previously authorized in writing by the Company, at the Company’s expense, and (ii) Participant shall have reasonably concluded if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (A) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with an actual or potential conflict of interest, (B) the named parties in any such Proceeding (including any impleaded parties) include the Company or any subsidiary of the Company and the Indemnitee, and the Indemnitee concludes that there may be a conflict of interest between one or more legal defenses available to him or her that are different from or in addition to those available to the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense any subsidiary of the Company. The Company , or (C) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then the Indemnitee 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 or on behalf of particular Proceeding) at the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b)Company’s expense. (c) The Company shall not be liable to indemnify Participant the Indemnitee under this Agreement for any amounts paid in settlement of any proceeding Proceeding relating to an Indemnifiable Event effected by Participant without the Company’s prior written consent. The consent and the Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consent. Neither consent of the Indemnitee, effect any settlement of any Proceeding relating to an Indemnifiable Event which the Indemnitee is or has been threatened to be made a party or has otherwise been a participant in such Proceeding, including, but not limited to, as a witness, unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on all claims that are the subject matter of such Proceeding; provided that neither the Company nor Participant will the Indemnitee shall unreasonably withhold their its or his or her consent to any proposed settlement; and provided that the Indemnitee may withhold consent to any settlement or compromise which (i) includes an admission of fault of the Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of the Indemnitee from all liability in respect of the Proceeding, which release shall be in form and substance reasonably satisfactory to the Indemnitee.

Notification and Defense of Proceedings. Participant agrees that he will use all reasonable efforts to notify the Company promptly (a) As soon as reasonably practicable after receipt by Participant the Indemnitee of written notice of the commencement that he or she is a party to or a participant (as a witness or otherwise) in any Proceeding or of any proceeding if he anticipates that a request for indemnification other matter in respect thereof is of which the Indemnitee intends to be made against seek indemnification or Expense Advance hereunder, the Indemnitee shall provide to the Company under this Agreement; but failure written notice thereof, including the nature of and the facts underlying such Proceeding or matter. The omission by the Indemnitee to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; andIndemnitee hereunder or otherwise. (b) except as otherwise provided belowThe Company shall be entitled, at its option and expense, either to participate in the defense of any Proceeding relating to an Indemnifiable Event or, upon written notice to the extent that it may wishIndemnitee, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, thereof with counsel reasonably satisfactory to Participant. After notice from the Company to Participant Indemnitee and after delivery of its election to assume the defense thereofsuch notice, the Company will shall not be liable to Participant the Indemnitee under this Agreement for any legal fees or other expenses of counsel subsequently incurred by Participant in connection the Indemnitee with respect to such Proceeding; provided that (i) the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant Indemnitee shall have the right to employ its retain separate counsel in such proceeding, but the fees and expenses respect of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be Proceeding at the Indemnitee’s expense of Participant unless (i) the employment of counsel by Participant has been or, if previously authorized in writing by the Company, at the Company’s expense, and (ii) Participant shall have reasonably concluded if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (A) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with an actual or potential conflict of interest, (B) the named parties in any such Proceeding (including any impleaded parties) include the Company or any subsidiary of the Company and the Indemnitee, and the Indemnitee concludes that there may be a conflict of interest between one or more legal defenses available to him or her that are different from or in addition to those available to the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense any subsidiary of the Company. The Company , or (C) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then the Indemnitee 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 or on behalf of particular Proceeding) at the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b)Company’s expense. (c) The Company shall not be liable to indemnify Participant the Indemnitee under this Agreement for any amounts paid in settlement of any proceeding Proceeding relating to an Indemnifiable Event effected by Participant without the Company’s prior written consent. The consent and the Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consent. Neither consent of the Indemnitee, effect any settlement of any Proceeding relating to an Indemnifiable Event which the Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on all claims that are the subject matter of such Proceeding; provided that neither the Company nor Participant will the Indemnitee shall unreasonably withhold their its or his or her consent to any proposed settlement; and provided that the Indemnitee may withhold consent to any settlement or compromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of the Proceeding, which release shall be in form and substance reasonably satisfactory to the Indemnitee.

Notification and Defense of Proceedings. Participant agrees that he will use all reasonable efforts to notify the Company promptly (a) As soon as reasonably practicable after receipt by Participant the Indemnitee of written notice that he or she is a party to or a participant (as a witness or otherwise) in any Proceeding or of any other matter in respect of which the Indemnitee intends to seek indemnification or Expense Advance hereunder, the Indemnitee shall provide to the Secretary of the commencement Company written notice thereof, including the nature of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against and the Company under this Agreement; but failure facts underlying such Proceeding or matter. The omission by the Indemnitee to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Indemnitee hereunder or otherwise unless the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; andis materially prejudiced by such omission. (b) except as otherwise provided belowThe Company shall be entitled, at its option and expense, either to participate in the defense of any Proceeding relating to an Indemnifiable Event or, upon written notice to the extent that it may wishIndemnitee, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, thereof with counsel reasonably satisfactory to Participant. After notice from the Company to Participant Indemnitee and after delivery of its election to assume the defense thereofsuch notice, the Company will shall not be liable to Participant the Indemnitee under this Agreement for any legal fees or other expenses of counsel subsequently incurred by Participant in connection the Indemnitee with respect to such Proceeding; provided that (i) the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant Indemnitee shall have the right to employ its retain separate counsel in such proceeding, but the fees and expenses respect of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be Proceeding at the Indemnitee’s expense of Participant unless (i) the employment of counsel by Participant has been or, if previously authorized in writing by the Company, at the Company’s expense, and (ii) Participant shall have if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (A) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with an actual or potential conflict of interest, (B) the named parties in any such Proceeding (including any impleaded parties) include the Company or any subsidiary of the Company and the Indemnitee, and the Indemnitee reasonably concluded concludes that there may be a conflict of interest between one or more legal defenses available to him or her that are different from or in addition to those available to the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense any subsidiary of the Company. The Company , or (C) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then the Indemnitee 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 or on behalf of particular Proceeding) at the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b)Company’s expense. (c) The Company shall not be liable to indemnify Participant the Indemnitee under this Agreement for any amounts paid in settlement of any proceeding Proceeding relating to an Indemnifiable Event effected by Participant without the Company’s prior written consent. The consent and the Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consent. Neither consent of the Indemnitee, effect any settlement of any Proceeding relating to an Indemnifiable Event which the Indemnitee is or has been threatened to be made a party or has otherwise been a participant in such Proceeding, including, but not limited to, as a witness, unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on all claims that are the subject matter of such Proceeding; provided that neither the Company nor Participant will the Indemnitee shall unreasonably withhold their its or his or her consent to any proposed settlement; and provided that the Indemnitee may withhold consent to any settlement or compromise which (i) includes an admission of fault on the part of the Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of the Indemnitee from all liability in respect of the Proceeding, which release shall be in form and substance reasonably satisfactory to the Indemnitee.

Notification and Defense of Proceedings. Participant Indemnitee agrees that he will to use all reasonable efforts to notify the Company promptly after receipt by Participant Indemnitee of notice of the commencement of any proceeding if he Indemnitee anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to ParticipantIndemnitee. With respect to any such proceeding as to which Participant Indemnitee notifies the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel satisfactory to ParticipantIndemnitee. After notice from the Company to Participant Indemnitee of its election to assume the defense thereof, the Company will not be liable to Participant Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Participant Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant Indemnitee shall have the right to employ its counsel in such proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant Indemnitee unless (i) the employment of counsel by Participant Indemnitee has been authorized by the Company, (ii) Participant Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Participant Indemnitee in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant Indemnitee shall have made the conclusion provided for in clause (ii) of this subsection 9(b8(b). (c) The Company shall not be liable to indemnify Participant Indemnitee under this Agreement for any amounts paid in settlement of any proceeding effected by Participant Indemnitee without the Company’s prior written consent. The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant Indemnitee without ParticipantIndemnitee’s prior written consent. Neither the Company nor Participant Indemnitee will unreasonably withhold their consent to any proposed settlement.

Notification and Defense of Proceedings. Participant agrees that he will use all reasonable efforts to notify the Company promptly after receipt by Participant of notice of the commencement of If any proceeding if he anticipates that a request for indemnification Proceeding is brought against Indemnitee in respect thereof is to of which indemnity may be made against the Company sought under this Agreement; but failure to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Company of the commencement thereof: (a) Indemnitee will promptly notify the Company in writing of the commencement thereof, and the Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled expense or to assume the defense thereof, with thereof and to engage counsel reasonably satisfactory to ParticipantIndemnitee; provided, however, that the failure to give any such notice shall not disqualify Indemnitee from indemnification hereunder unless the Company’s ability to defend against such Proceeding is materially and adversely prejudiced thereby. After notice from The assumption of the defense of any Proceeding by the Company in accordance with this Section 7(a) shall not create a presumption that the Indemnitee is entitled to Participant of its election to assume the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowindemnification hereunder. Participant Indemnitee shall have the right to employ its engage his or her own counsel in connection with any such proceedingProceeding and to participate in the defense thereof, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant Indemnitee unless (i) the employment Company shall not have assumed the defense of the Proceeding and employed counsel by Participant has been authorized by for such defense, or (ii) the named parties to any such action (including any impleaded parties) include both Indemnitee and the Company, (ii) Participant and Indemnitee shall have reasonably concluded that there joint representation may be a inappropriate under applicable standards of professional conduct due to an actual or potential material conflict of interest between Indemnitee and the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceedingCompany, in each either of which cases events the reasonable fees and expenses of such counsel to Indemnitee shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any proceeding brought borne by or on behalf of the Company or as to which Participant shall have made the conclusion provided for and advanced in clause (ii) of this subsection 9(b)accordance with Section 8. (cb) The Company shall not be liable to indemnify Participant under this Agreement Indemnitee for any amounts paid in settlement of any proceeding Proceeding effected by Participant without the Company’s prior written consent. The , and the Company shall not settle any proceeding Proceeding in any a manner which would impose any penalty or limitation on Participant Indemnitee without ParticipantIndemnitee’s prior written consent. Neither ; provided, however, that neither the Company nor Participant Indemnitee will unreasonably withhold their its consent to any proposed settlement. The Company shall not, without the prior written consent of Indemnitee, consent to the entry of any judgment against Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of the Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee.

Notification and Defense of Proceedings. Participant agrees that he will use all reasonable efforts to notify the Company promptly after receipt by Participant of notice of the commencement of If any proceeding if he anticipates that a request for indemnification Proceeding is brought against Indemnitee in respect thereof is to of which indemnity may be made against the Company sought under this Agreement; but failure to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Company of the commencement thereof: (a) Indemnitee will promptly notify the Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided belowin writing of the commencement thereof, to the extent that it may wish, and the Company jointly with and any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel satisfactory to Participant. After notice from the Company to Participant of participate therein at its election own expense or to assume the defense thereofthereof and to engage counsel reasonably satisfactory to Indemnitee; provided, however, that the failure to give any such notice shall not disqualify Indemnitee from indemnification hereunder unless the Company’s ability to defend against such Proceeding is materially and adversely prejudiced thereby. Notice to the Company will not shall be liable directed to Participant under the Chief Executive Officer of the Company at the address shown in Section 21 of this Agreement for any legal (or such other expenses subsequently incurred address as the Company shall designate in writing to Indemnitee pursuant to Section 21). Notice shall be deemed received three (3) business days after the date postmarked if sent by Participant in connection with domestic certified or registered mail, properly addressed; otherwise notice shall be deemed received when such notice shall actually be received by the defense thereof other than reasonable costs of investigation or as otherwise provided belowCompany. Participant Indemnitee shall have the right to employ its engage his or her own counsel in connection with any such proceedingProceeding and to participate in the defense thereof, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant Indemnitee unless (i) the employment Company shall not have assumed the defense of the Proceeding and employed counsel by Participant has been authorized by for such defense, or (ii) the named parties to any such action (including any impleaded parties) include both Indemnitee and the Company, (ii) Participant and Indemnitee shall have reasonably concluded that there may be joint representation is inappropriate under applicable standards of professional conduct due to a material conflict of interest between Indemnitee and the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceedingCompany, in each either of which cases events the reasonable fees and expenses of such counsel to Indemnitee shall be at the expense of borne by the Company. The Company shall not be entitled , subject to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b)Section 9. (cb) The Company shall not be liable to indemnify Participant under this Agreement Indemnitee for any amounts paid in settlement of any proceeding Proceeding effected by Participant without the Company’s prior written consent. The , and the Company shall not settle any proceeding Proceeding in any a manner which would impose any penalty or limitation on Participant Indemnitee without ParticipantIndemnitee’s prior written consent. Neither ; provided, however, that neither the Company nor Participant Indemnitee will unreasonably withhold their its consent to any proposed settlement; and provided further, that if a Proceeding is settled by Indemnitee with the Company’s written consent, or if there be a final judgment or decree for the plaintiff in connection with the Proceeding by a court of competent jurisdiction, the Company shall indemnify and hold harmless Indemnitee from and against any and all Indemnifiable Losses incurred by reason of such settlement or judgment. The Company shall not, without the prior written consent of Indemnitee, consent to the entry of any judgment against Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of the Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee.

Notification and Defense of Proceedings. Participant DIRECTOR agrees that he will use all reasonable efforts to notify the Company promptly after receipt by Participant DIRECTOR of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to ParticipantDIRECTOR. With respect to any such proceeding as to which Participant DIRECTOR notifies the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel satisfactory to ParticipantDIRECTOR. After notice from the Company to Participant DIRECTOR of its election to assume the defense thereof, the Company will not be liable to Participant DIRECTOR under this Agreement for any legal or other expenses subsequently incurred by Participant DIRECTOR in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant DIRECTOR shall have the right to employ its counsel in such proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant DIRECTOR unless (i) the employment of counsel by Participant DIRECTOR has been authorized by the Company, (ii) Participant DIRECTOR shall have reasonably concluded that there may be a conflict of interest between the Company and Participant DIRECTOR in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant DIRECTOR shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable to indemnify Participant DIRECTOR under this Agreement for any amounts paid in settlement of any proceeding effected by Participant DIRECTOR without the Company’s prior written consent. The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant DIRECTOR without ParticipantDIRECTOR’s prior written consent. Neither the Company nor Participant DIRECTOR will unreasonably withhold their consent to any proposed settlement.

Notification and Defense of Proceedings. Participant 5.1 The Indemnitee agrees that he to promptly notify the Company in writing upon receipt of a complaint, demand letter, writ of summons, or other document in relation to (or upon otherwise becoming aware of) any Proceeding against the Indemnitee for which indemnification will use all reasonable efforts or could be sought under this Agreement. The failure to notify the Company promptly after receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will shall not relieve the Company from of any indemnification or other obligation or liability which it may have to Participant. With respect the Indemnitee under this Agreement or otherwise, unless and only to any the extent that such proceeding as to which Participant notifies failure or delay adversely prejudices the Company of the commencement thereof:Company. (a) the 5.2 The Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, in any Proceeding notified to the extent that it may wishCompany in accordance with Clause 5.1 and any other Proceeding against the Indemnitee for which indemnification will or, in the reasonable determination of the Company, could be sought under this Agreement. Any participation of the Company in any Proceeding in accordance with the previous sentence, shall not in any way limit or otherwise adversely affect the right of the Company to dispute the Indemnitee’s right to indemnification hereunder, subject to the terms and conditions hereof. 5.3 With respect to any Proceeding notified to the Company in accordance with Clause 5.1, the Company jointly with any other indemnifying party similarly notified will shall be entitled to assume the defense thereof, with counsel selected by the Company and reasonably satisfactory to ParticipantIndemnitee. After notice from The Company shall consult the Indemnitee on the conduct of the defense. The Company shall, however, have the right to conduct the defense as it sees fit in its sole discretion, provided that the Company to Participant of its election to assume shall conduct the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowgood faith and in a diligent manner. Participant The Indemnitee shall have the right to employ its own counsel in such proceedingProceeding, but the any fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant unless Indemnitee’s expense, unless: (i) the employment of counsel by Participant the Indemnitee has been authorized in writing by the Company, ; (ii) Participant shall have reasonably concluded that there may be a an actual conflict of interest arises between the Company and Participant the Indemnitee in the conduct of such defense or representation by such counsel retained by the defense Company and the Company has not appointed new counsel who does not have a conflict of such proceeding or interest; (iii) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration); or (iv) the Company shall does not in fact have employed continue to retain counsel and the Company has not appointed new counsel reasonably satisfactory to the Indemnitee to assume the defense of such proceedingProceeding, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the Company. . 5.4 The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable no obligation to indemnify Participant the Indemnitee under this Agreement for any amounts paid or expenses incurred in connection with a settlement of any proceeding Proceeding effected by Participant without the Company’s prior written consent. , which consent shall not be unreasonably withheld or delayed. 5.5 The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consentconsent of the Indemnitee, consent to the entry of any judgment or award against the Indemnitee or enter into any settlement or compromise which (i) contains any non-monetary remedy imposed on the Indemnitee or a Liability for which the Indemnitee is not wholly indemnified under this Agreement or (ii) with respect to any Proceeding with respect to which the Indemnitee is made a party or a participant or is otherwise entitled to seek indemnification hereunder, does not include a full and unconditional release of the Indemnitee from all liability in respect of such Proceeding. Neither the Company nor Participant the Indemnitee will unreasonably withhold their its consent to any proposed settlement. 5.6 The Indemnitee shall fully cooperate with the Company and its counsel and shall give the Company and its counsel, at the Company’s expense, all information and access to documents and files, and to the Indemnitee’s advisors and representatives, to the extent within the Indemnitee’s power, in each case as may be reasonably requested by the Company or its counsel with respect to any Proceeding that was (or should have been) notified to the Company in accordance with Clause 5.1.

Notification and Defense of Proceedings. Participant agrees (a) As soon as reasonably practicable after receipt by the Indemnitee of notice that he will use all reasonable efforts or she is a party to or a participant (as a witness or otherwise) in any Proceeding or of any other matter in respect of which the Indemnitee intends to seek indemnification or Expense Advance hereunder, the Indemnitee shall provide to the Secretary, the General Counsel or the Chairman of the Board of the Company written notice thereof, including, to the extent reasonably available to the Indemnitee, the nature of, and the facts underlying, such Proceeding or matter and such other documentation and information as is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. Without limiting the generality of the foregoing, the Indemnitee agrees to promptly notify the Company promptly after receipt in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information, or other documents relating to any Proceeding or matter which may be subject to indemnification hereunder. The omission by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure Indemnitee to so notify the Company as provided in this subsection will not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Indemnitee hereunder or otherwise unless the interests of the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; andare actually and materially prejudiced by such omission. (b) except as otherwise provided belowThe Company shall be entitled, at its option and expense, either to participate in the defense of any Proceeding relating to an Indemnifiable Event or, upon written notice to the extent that it may wishIndemnitee, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, thereof with counsel reasonably satisfactory to Participant. After notice from the Company to Participant Indemnitee and after delivery of its election to assume the defense thereofsuch notice, the Company will shall not be liable to Participant the Indemnitee under this Agreement for any legal fees or other expenses of counsel subsequently incurred by Participant in connection the Indemnitee with respect to such Proceeding; provided that (i) the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant Indemnitee shall have the right to employ its retain separate counsel in such proceeding, but the fees and expenses respect of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be Proceeding at the Indemnitee’s expense of Participant unless (i) the employment of counsel by Participant has been or, if previously authorized in writing by the Company, at the Company’s expense, and (ii) Participant shall have if the Indemnitee believes, after consultation with counsel selected by the Indemnitee, that (A) the use of counsel chosen by the Company to represent the Indemnitee would present such counsel with an actual or potential conflict of interest, (B) the named parties in any such Proceeding (including any impleaded parties) include the Company or any subsidiary of the Company and the Indemnitee, and the Indemnitee reasonably concluded concludes that there may be a conflict of interest between one or more legal defenses available to him or her that are different from or in addition to those available to the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense any subsidiary of the Company. The Company , or (C) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then the Indemnitee 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 or on behalf of particular Proceeding) at the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b)Company’s expense. (c) The Company shall not be liable to indemnify Participant the Indemnitee under this Agreement for any amounts paid in settlement of any proceeding Proceeding relating to an Indemnifiable Event effected by Participant without the Company’s prior written consent. The consent and the Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consent. Neither consent of the Indemnitee, effect any settlement of any Proceeding relating to an Indemnifiable Event which the Indemnitee is or has been threatened to be made a party or has otherwise been a participant in such Proceeding, including, but not limited to, as a witness, unless such settlement solely involves the payment of money and includes a complete and unconditional release of the Indemnitee from all liability on all claims that are the subject matter of such Proceeding; provided, however that neither the Company nor Participant will the Indemnitee shall unreasonably withhold their its or his or her consent to any proposed settlement; and provided that, notwithstanding anything to the contrary contained herein, the Indemnitee may withhold consent to any settlement or compromise which (i) includes an admission of fault on the part of the Indemnitee, (ii) permanently or temporarily bars the Indemnitee from serving as a director or officer of a public company, (iii) permanently or temporarily bars the Indemnitee from engaging in any professional occupation or business activity, or (iv) does not include, as an unconditional term thereof, the full release of the Indemnitee from all liability in respect of the Proceeding, which release shall be in form and substance reasonably satisfactory to the Indemnitee.

Notification and Defense of Proceedings. Participant 5.1 The Indemnitee agrees that he to promptly notify the Company in writing upon receipt of a complaint, demand letter, writ of summons, or other document in relation to (or upon otherwise becoming aware of) any Proceeding against the Indemnitee for which indemnification will use all reasonable efforts or could be sought under this Agreement. The failure to notify the Company promptly after receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will shall not relieve the Company from of any indemnification or other obligation or liability which it may have to Participant. With respect the Indemnitee under this Agreement or otherwise, unless and only to any the extent that such proceeding as to which Participant notifies failure or delay adversely prejudices the Company of the commencement thereof:Company. (a) the 5.2 The Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, in any Proceeding notified to the extent that it may wishCompany in accordance with Clause 5.1 and any other Proceeding against the Indemnitee for which indemnification will or, in the reasonable determination of the Company, could be sought under this Agreement. Any participation of the Company in any Proceeding in accordance with the previous sentence, shall not in any way limit or otherwise adversely affect the right of the Company to dispute the Indemnitee’s right to indemnification hereunder. 5.3 With respect to any Proceeding notified to the Company in accordance with Clause 5.1, the Company jointly with any other indemnifying party similarly notified will shall be entitled to assume the defense thereof, with counsel selected by the Company and reasonably satisfactory to ParticipantIndemnitee. After notice from The Company shall consult the Indemnitee on the conduct of the defense. The Company shall, however, have the right to conduct the defense as it sees fit in its sole discretion, provided that the Company to Participant of its election to assume shall conduct the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowgood faith and in a diligent manner. Participant The Indemnitee shall have the right to employ its own counsel in such proceedingProceeding, but the any fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant unless Indemnitee’s expense, unless: (i) the employment of counsel by Participant the Indemnitee has been authorized in writing by the Company, ; (ii) Participant shall have reasonably concluded that there may be a an actual conflict of interest arises between the Company and Participant the Indemnitee in the conduct of such defense or representation by such counsel retained by the defense Company and the Company has not appointed new counsel who does not have a conflict of such proceeding interest; or (iii) the Company shall does not in fact have employed continue to retain counsel and the Company has not appointed new counsel reasonably satisfactory to the Indemnitee to assume the defense of such proceedingProceeding, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the Company. . 5.4 The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable no obligation to indemnify Participant the Indemnitee under this Agreement for any amounts paid or expenses incurred in connection with a settlement of any proceeding Proceeding effected by Participant without the Company’s prior written consent. , which consent shall not be unreasonably withheld. 5.5 The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consentconsent of the Indemnitee, consent to the entry of any judgment or award against the Indemnitee or enter into any settlement or compromise which (i) contains any non-monetary remedy imposed on the Indemnitee or a Liability for which the Indemnitee is not wholly indemnified under this Agreement or (ii) with respect to any Proceeding with respect to which the Indemnitee is made a party or a participant or is otherwise entitled to seek indemnification hereunder, does not include a full and unconditional release of the Indemnitee from all liability in respect of such Proceeding. Neither the Company nor Participant the Indemnitee will unreasonably withhold their its consent to any proposed settlement. 5.6 The Indemnitee shall fully cooperate with the Company and its counsel and shall give the Company and its counsel, at the Company’s expense, all information and access to documents and files, and to the Indemnitee’s advisors and representatives, to the extent within the Indemnitee’s power, in each case as may be reasonably requested by the Company or its counsel with respect to any Proceeding that was (or should have been) notified to the Company in accordance with Clause 5.1.

Notification and Defense of Proceedings. Participant agrees that he will use all reasonable efforts to notify the Company promptly after receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel satisfactory to Participant. After notice from the Company to Participant of its election to assume the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant shall have the right to employ its counsel in such proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant unless (i) the employment of counsel by Participant has been authorized by the Company, (ii) Participant shall have reasonably concluded that there may be a conflict of interest between the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable to indemnify Participant under this Agreement for any amounts paid in settlement of any proceeding effected by Participant without the Company’s 's prior written consent. The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant without Participant’s 's prior written consent. Neither the Company nor Participant will unreasonably withhold their consent to any proposed settlement.

Notification and Defense of Proceedings. Participant 5.1 The Indemnitee agrees that he to promptly notify the Company in writing upon receipt of a complaint, demand letter, writ of summons, or other document in relation to (or upon otherwise becoming aware of) any Proceeding against the Indemnitee for which indemnification will use all reasonable efforts or could be sought under this Agreement. The failure to notify the Company promptly after receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will shall not relieve the Company from of any indemnification or other obligation or liability which it may have to Participant. With respect the Indemnitee under this Agreement or otherwise, unless and only to any the extent that such proceeding as to which Participant notifies failure or delay adversely prejudices the Company of the commencement thereof:Company. (a) the 5.2 The Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, in any Proceeding notified to the extent that it may wishCompany in accordance with Clause 5.1 and any other Proceeding against the Indemnitee for which indemnification will or, in the reasonable determination of the Company, could be sought under this Agreement. Any participation of the Company in any Proceeding in accordance with the previous sentence shall not in any way limit or otherwise adversely affect the right of the Company to dispute the Indemnitee’s right to indemnification hereunder. 5.3 With respect to any Proceeding notified to the Company in accordance with Clause 5.1, the Company jointly with any other indemnifying party similarly notified will shall be entitled to assume the defense thereof, with counsel selected by the Company and reasonably satisfactory to Participantthe Indemnitee. After notice from The Company shall consult the Indemnitee on the conduct of the defense. The Company shall, however, have the right to conduct the defense as it sees fit in its sole discretion, provided that the Company to Participant of its election to assume shall conduct the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowgood faith and in a diligent manner. Participant The Indemnitee shall have the right to employ its own counsel in such proceedingProceeding, but the any fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant unless Indemnitee’s expense, unless: (i) the employment of counsel by Participant the Indemnitee has been authorized in writing by the Company, ; (ii) Participant shall have reasonably concluded that there may be a an actual conflict of interest arises between the Company and Participant the Indemnitee in the conduct of such defense or representation by such counsel retained by the defense Company and the Company has not appointed new counsel who does not have a conflict of such proceeding interest; or (iii) the Company shall does not in fact have employed continue to retain counsel and the Company has not appointed new counsel reasonably satisfactory to the Indemnitee to assume the defense of such proceedingProceeding, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the Company. . 5.4 The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable no obligation to indemnify Participant the Indemnitee under this Agreement for any amounts paid or expenses incurred in connection with a settlement of any proceeding Proceeding effected by Participant without the Company’s prior written consent. , which consent shall not be unreasonably withheld. 5.5 The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consentconsent of the Indemnitee, consent to the entry of any judgment or award against the Indemnitee or enter into any settlement or compromise which (i) contains any non-monetary remedy imposed on the Indemnitee or a Liability for which the Indemnitee is not wholly indemnified under this Agreement or (ii) with respect to any Proceeding with respect to which the Indemnitee is made a party or a participant or is otherwise entitled to seek indemnification hereunder, does not include a full and unconditional release of the Indemnitee from all liability in respect of such Proceeding. Neither the Company nor Participant the Indemnitee will unreasonably withhold their its consent to any proposed settlement. 5.6 The Indemnitee shall fully cooperate with the Company and its counsel and shall give the Company and its counsel, at the Company’s expense, all information and access to documents and files, and to the Indemnitee’s advisors and representatives, to the extent within the Indemnitee’s power, in each case as may be reasonably requested by the Company or its counsel with respect to any Proceeding that was (or should have been) notified to the Company in accordance with Clause 5.1.

Notification and Defense of Proceedings. Participant agrees that he will use all reasonable efforts to notify the Company promptly after receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel satisfactory to Participant. After notice from the Company to Participant of its election to assume the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant shall have the right to employ its counsel in such proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant unless (i) the employment of counsel by Participant has been authorized by the Company, (ii) Participant shall have reasonably concluded that there may be a conflict of interest between the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable to indemnify Participant under this Agreement for any amounts paid in settlement of any proceeding effected by Participant without the Company’s 's prior written consent. The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant without Participant’s 's prior written consent. Neither the Company nor Participant will unreasonably withhold their consent to any proposed settlement.written

Notification and Defense of Proceedings. Participant 5.1. The Indemnitee agrees that he to promptly notify the Company in writing upon receipt of a complaint, demand letter, writ of summons, or other document in relation to (or upon otherwise becoming aware of) any Proceeding against the Indemnitee for which indemnification will use all reasonable efforts or could be sought under this Agreement. The failure to notify the Company promptly after receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will shall not relieve the Company from of any indemnification or other obligation or liability which it may have to Participantthe Indemnitee under this Agreement or otherwise, unless and only to the extent that such failure or delay adversely prejudices the Company. 5.2. With respect to any such proceeding as to which Participant notifies the Company of the commencement thereof: (a) the The Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, in any Proceeding notified to the extent that it may wishCompany in accordance with Clause 5.1 and any other Proceeding against the Indemnitee for which indemnification will or, in the reasonable determination of the Company, could be sought under this Agreement. Any participation of the Company in any Proceeding in accordance with the previous sentence, shall not in any way limit or otherwise adversely affect the right of the Company to dispute the Indemnitee’s right to indemnification hereunder. 5.3. With respect to any Proceeding notified to the Company in accordance with Clause 5.1, the Company jointly with any other indemnifying party similarly notified will shall be entitled to assume the defense thereof, with counsel selected by the Compay and reasonably satisfactory to ParticipantIndemnitee. After notice from The Company shall consult the Indemnitee on the conduct of the defense. The Company shall, however, have the right to conduct the defense as it sees fit in its sole discretion, provided that the Company to Participant of its election to assume shall conduct the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowgood faith and in a diligent manner. Participant The Indemnitee shall have the right to employ its own counsel in such proceedingProceeding, but the any fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant unless Indemnitee’s expense, unless: (i) the employment of counsel by Participant the Indemnitee has been authorized in writing by the Company, ; (ii) Participant shall have reasonably concluded that there may be a an actual conflict of interest arises between the Company and Participant the Indemnitee in the conduct of such defense or representation by such counsel retained by the defense Company and the Company has not appointed new counsel who does not have a conflict of such proceeding interest; or (iii) the Company shall does not in fact have employed continue to retain counsel and the Company has not appointed new counsel reasonably satisfactory to the Indemnitee to assume the defense of such proceedingProceeding, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the Company. 5.4. The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable no obligation to indemnify Participant the Indemnitee under this Agreement for any amounts paid or expenses incurred in connection with a settlement of any proceeding Proceeding effected by Participant without the Company’s prior written consent, which consent shall not be unreasonably withheld. 5.5. The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consentconsent of the Indemnitee, consent to the entry of any judgment or award against the Indemnitee or enter into any settlement or compromise which (i) contains any non-monetary remedy imposed on the Indemnitee or a Liability for which the Indemnitee is not wholly indemnified under this Agreement or (ii) with respect to any Proceeding with respect to which the Indemnitee is made a party or a participant or is otherwise entitled to seek indemnification hereunder, does not include a full and unconditional release of the Indemnitee from all liability in respect of such Proceeding. Neither the Company nor Participant the Indemnitee will unreasonably withhold their its consent to any proposed settlement. 5.6. The Indemnitee shall fully cooperate with the Company and its counsel and shall give the Company and its counsel, at the Company’s expense, all information and access to documents and files, and to the Indemnitee’s advisors and representatives, to the extent within the Indemnitee’s power, in each case as may be reasonably requested by the Company or its counsel with respect to any Proceeding that was (or should have been) notified to the Company in accordance with Clause 5.1.

Notification and Defense of Proceedings. Participant Foshee agrees that he will use all reasonable efforts to notify the Company Xxxxxxy promptly after receipt by Participant Foshee of notice of the commencement of any proceeding if he anticipates that anticipxxxx xhat a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to ParticipantFoshee. With respect to any such proceeding as to which Participant notifies the Foshee notifxxx xxe Company of the commencement thereof: (ax) the xxx Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel satisfactory to ParticipantFoshee. After notice from the Company to Participant Foshee of its election to assume axxxxx the defense thereof, the Company will not wixx xxx be liable to Participant Foshee under this Agreement for any legal or other expenses subsequently incurred subsequexxxx xncurred by Participant Foshee in connection with the defense thereof other than reasonable costs xxxxx of investigation or as otherwise provided below. Participant Foshee shall have the right to employ its counsel in such proceeding, but xxx the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant Foshee unless (i) the employment of counsel by Participant Foshee has been authorized authoxxxxx by the Company, (ii) Participant Foshee shall have reasonably rexxxxxxly concluded that there may be a conflict of interest xx xxxerest between the Company and Participant Foshee in the conduct of the defense of such proceeding or (iii) the Company Xxxxxny shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant Foshee shall have made the conclusion provided for in clause (ii) of this xxxx subsection 9(b). (c) The Company shall not be liable to indemnify Participant Foshee under this Agreement for any amounts paid in settlement of any proceeding anx xxxxeeding effected by Participant Foshee without the Company’s 's prior written consent. The Company shall not shalx xxx settle any proceeding in any manner which would impose any penalty or limitation on Participant Foshee without Participant’s Foshee's prior written consent. Neither the Company nor Participant nxx Xxxhee will unreasonably xxxxxxxxably withhold their consent to any proposed settlementsettxxxxxx.

Notification and Defense of Proceedings. Participant agrees that he will use all reasonable efforts Indemnitee shall give notice (the “Notice”) to notify the Company promptly within five Business Days after actual receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification summons, citation, subpoena, complaint, indictment, information, or other document related to any Proceeding begun in respect thereof is of which indemnity may be sought hereunder; provided, however, that the Indemnitee’s failure to be made against give such notice to the Company under this Agreement; but failure to so notify the Company will within such time shall not relieve the Company from any indemnification or other obligation or liability which it may have to Participant. With respect to any such proceeding as to which Participant notifies the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; and (b) obligations under Sections 2 and 3 of this Agreement except as otherwise provided below, to the extent that it may wishthe Company has been materially prejudiced by Indemnitee’s failure to give such notice within such time period. Upon receipt of a Notice, the Company jointly with any other indemnifying party similarly notified will be entitled to may assume the defense thereofof such Proceeding, with counsel satisfactory to Participant. After notice from whereupon the Company to Participant of its election to assume the defense thereof, the Company will shall not be liable to Participant the Indemnitee under this Agreement for any legal fees or other expenses of counsel subsequently incurred by Participant Indemnitee or any other Expenses incurred with respect to the matters set forth in connection with the defense thereof other than Notice. The Company shall reimburse the Indemnitee pursuant to the terms of this Agreement for all Expenses related to the Proceeding incurred by the Indemnitee prior to the Indemnitee’s giving of the Notice. Notwithstanding the foregoing, Indemnitee shall be entitled to retain counsel and shall be reimbursed in full for all of the reasonable costs of investigation or as otherwise provided below. Participant shall have the right to employ its counsel in such proceeding, but the fees and expenses of such counsel incurred after notice from in the Company of its assumption of the defense thereof shall be at the expense of Participant unless event that (i) the employment of counsel by Participant has been authorized by the Company, (ii) Participant shall have reasonably concluded that there may be a conflict of interest between the Company and Participant in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel fails to assume the defense of such proceedingIndemnitee when it is required to do so hereunder, or (iii) there is a potential conflict of interest among Indemnitee and one or more other persons or entities represented by counsel proposed by the Company in each fulfillment of which cases the fees and expenses of counsel its indemnification obligations hereunder. Nothing in this Agreement shall be at the expense constitute a waiver of the Company. The Company shall not be entitled ’s right to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable to indemnify Participant under this Agreement for any amounts paid in settlement of any proceeding effected by Participant without the Company’s prior written consent. The Company shall not settle any proceeding seek participation at its own expense in any manner Proceeding which would impose any penalty or limitation on Participant without Participant’s prior written consent. Neither the Company nor Participant will unreasonably withhold their consent may give rise to any proposed settlementindemnification hereunder.

Notification and Defense of Proceedings. Participant 5.1 The Indemnitee agrees that he to promptly notify the Company in writing upon receipt of a complaint, demand letter, writ of summons, or other document in relation to (or upon otherwise becoming aware of) any Proceeding against the Indemnitee for which indemnification will use all reasonable efforts or could be sought under this Agreement. The failure to notify the Company promptly after receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will shall not relieve the Company from of any indemnification or other obligation or liability which it may have to Participant. With respect the Indemnitee under this Agreement or otherwise, unless and only to any the extent that such proceeding as to which Participant notifies failure or delay adversely prejudices the Company of the commencement thereof:Company. (a) the 5.2 The Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, in any Proceeding notified to the extent that it may wishCompany in accordance with Clause 5.1 and any other Proceeding against the Indemnitee for which indemnification will or, in the reasonable determination of the Company, could be sought under this Agreement. Any participation of the Company in any Proceeding in accordance with the previous sentence, shall not in any way limit or otherwise adversely affect the right of the Company to dispute the Indemnitee's right to indemnification hereunder, subject to the terms and conditions hereof. 5.3 With respect to any Proceeding notified to the Company in accordance with Clause 5.1, the Company jointly with any other indemnifying party similarly notified will shall be entitled to assume the defense thereof, with counsel selected by the Company and reasonably satisfactory to ParticipantIndemnitee. After notice from The Company shall consult the Indemnitee on the conduct of the defense. The Company shall, however, have the right to conduct the defense as it sees fit in its sole discretion, provided that the Company to Participant of its election to assume shall conduct the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowgood faith and in a diligent manner. Participant The Indemnitee shall have the right to employ its own counsel in such proceedingProceeding, but the any fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant unless Indemnitee's expense, unless: (i) the employment of counsel by Participant the Indemnitee has been authorized in writing by the Company, ; (ii) Participant shall have reasonably concluded that there may be a an actual conflict of interest arises between the Company and Participant the Indemnitee in the conduct of such defense or representation by such counsel retained by the defense Company and the Company has not appointed new counsel who does not have a conflict of such proceeding or interest; (iii) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration); or (iv) the Company shall does not in fact have employed continue to retain counsel and the Company has not appointed new counsel reasonably satisfactory to the Indemnitee to assume the defense of such proceedingProceeding, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the Company. . 5.4 The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable no obligation to indemnify Participant the Indemnitee under this Agreement for any amounts paid or expenses incurred in connection with a settlement of any proceeding Proceeding effected by Participant without the Company’s prior written consent. , which consent shall not be unreasonably withheld or delayed. 5.5 The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consentconsent of the Indemnitee, consent to the entry of any judgment or award against the Indemnitee or enter into any settlement or compromise which (i) contains any non-monetary remedy imposed on the Indemnitee or a Liability for which the Indemnitee is not wholly indemnified under this Agreement or (ii) with respect to any Proceeding with respect to which the Indemnitee is made a party or a participant or is otherwise entitled to seek indemnification hereunder, does not include a full and unconditional release of the Indemnitee from all liability in respect of such Proceeding. Neither the Company nor Participant the Indemnitee will unreasonably withhold their its consent to any proposed settlement. 5.6 The Indemnitee shall fully cooperate with the Company and its counsel and shall give the Company and its counsel, at the Company's expense, all information and access to documents and files, and to the Indemnitee's advisors and representatives, to the extent within the Indemnitee's power, in each case as may be reasonably requested by the Company or its counsel with respect to any Proceeding that was (or should have been) notified to the Company in accordance with Clause 5.1.

Notification and Defense of Proceedings. Participant Xxxxxx agrees that he will use all reasonable efforts to notify the Company promptly after receipt by Participant Xxxxxx of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will not relieve the Company from any indemnification or other obligation or liability which it may have to ParticipantXxxxxx. With respect to any such proceeding as to which Participant Xxxxxx notifies the Company of the commencement thereof: (a) the Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel satisfactory to ParticipantXxxxxx. After notice from the Company to Participant Xxxxxx of its election to assume the defense thereof, the Company will not be liable to Participant Xxxxxx under this Agreement for any legal or other expenses subsequently incurred by Participant Xxxxxx in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Participant Xxxxxx shall have the right to employ its counsel in such proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant Xxxxxx unless (i) the employment of counsel by Participant Xxxxxx has been authorized by the Company, (ii) Participant Xxxxxx shall have reasonably concluded that there may be a conflict of interest between the Company and Participant Xxxxxx in the conduct of the defense of such proceeding or (iii) the Company shall not in fact have employed counsel to assume the defense of such proceeding, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant Xxxxxx shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable to indemnify Participant Xxxxxx under this Agreement for any amounts paid in settlement of any proceeding effected by Participant Xxxxxx without the Company’s prior written consent. The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant Xxxxxx without Participant’s Xxxxxx’x prior written consent. Neither the Company nor Participant Xxxxxx will unreasonably withhold their consent to any proposed settlement.

Notification and Defense of Proceedings. Participant 5.1 The Indemnitee agrees that he to promptly notify the Company in writing upon receipt of a complaint, demand letter, writ of summons, or other document in relation to (or upon otherwise becoming aware of) any Proceeding against the Indemnitee for which indemnification will use all reasonable efforts or could be sought under this Agreement. The failure to notify the Company promptly after receipt by Participant of notice of the commencement of any proceeding if he anticipates that a request for indemnification in respect thereof is to be made against the Company under this Agreement; but failure to so notify the Company will shall not relieve the Company from of any indemnification or other obligation or liability which it may have to Participant. With respect the Indemnitee under this Agreement or otherwise, unless and only to any the extent that such proceeding as to which Participant notifies failure or delay adversely prejudices the Company of the commencement thereof:Company. (a) the 5.2 The Company will be entitled to participate therein at its own expense; and (b) except as otherwise provided below, in any Proceeding notified to the extent that it may wishCompany in accordance with Clause 5.1 and any other Proceeding against the Indemnitee for which indemnification will or, in the reasonable determination of the Company, could be sought under this Agreement. Any participation of the Company in any Proceeding in accordance with the previous sentence, shall not in any way limit or otherwise adversely affect the right of the Company to dispute the Indemnitee’s right to indemnification hereunder. 5.3 With respect to any Proceeding notified to the Company in accordance with Clause 5.1, the Company jointly with any other indemnifying party similarly notified will shall be entitled to assume the defense thereof, with counsel selected by the Company and reasonably satisfactory to ParticipantIndemnitee. After notice from The Company shall consult the Indemnitee on the conduct of the defense. The Company shall, however, have the right to conduct the defense as it sees fit in its sole discretion, provided that the Company to Participant of its election to assume shall conduct the defense thereof, the Company will not be liable to Participant under this Agreement for any legal or other expenses subsequently incurred by Participant in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided belowgood faith and in a diligent manner. Participant The Indemnitee shall have the right to employ its own counsel in such proceedingProceeding, but the any fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Participant unless Indemnitee’s expense, unless: (i) the employment of counsel by Participant the Indemnitee has been authorized in writing by the Company, ; (ii) Participant shall have reasonably concluded that there may be a an actual conflict of interest arises between the Company and Participant the Indemnitee in the conduct of such defense or representation by such counsel retained by the defense Company and the Company has not appointed new counsel who does not have a conflict of such proceeding or interest; (iii) such Proceeding seeks penalties or other relief against the Indemnitee with respect to which the Indemnitor could not provide monetary indemnification to the Indemnitee (such as injunctive relief or incarceration); or (iv) the Company shall does not in fact have employed continue to retain counsel and the Company has not appointed new counsel reasonably satisfactory to the Indemnitee to assume the defense of such proceedingProceeding, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the Company. . 5.4 The Company shall not be entitled to assume the defense of any proceeding brought by or on behalf of the Company or as to which Participant shall have made the conclusion provided for in clause (ii) of this subsection 9(b). (c) The Company shall not be liable no obligation to indemnify Participant the Indemnitee under this Agreement for any amounts paid or expenses incurred in connection with a settlement of any proceeding Proceeding effected by Participant without the Company’s prior written consent. , which consent shall not be unreasonably withheld or delayed. 5.5 The Company shall not settle any proceeding in any manner which would impose any penalty or limitation on Participant not, without Participant’s the prior written consentconsent of the Indemnitee, consent to the entry of any judgment or award against the Indemnitee or enter into any settlement or compromise which (i) contains any non-monetary remedy imposed on the Indemnitee or a Liability for which the Indemnitee is not wholly indemnified under this Agreement or (ii) with respect to any Proceeding with respect to which the Indemnitee is made a party or a participant or is otherwise entitled to seek indemnification hereunder, does not include a full and unconditional release of the Indemnitee from all liability in respect of such Proceeding. Neither the Company nor Participant the Indemnitee will unreasonably withhold their its consent to any proposed settlement. 5.6 The Indemnitee shall fully cooperate with the Company and its counsel and shall give the Company and its counsel, at the Company’s expense, all information and access to documents and files, and to the Indemnitee’s advisors and representatives, to the extent within the Indemnitee’s power, in each case as may be reasonably requested by the Company or its counsel with respect to any Proceeding that was (or should have been) notified to the Company in accordance with Clause 5.1.