Common use of Right of Indemnitee to Employ Counsel Clause in Contracts

Right of Indemnitee to Employ Counsel. If the Company exercises its rights under Section 10.1 hereof, then, following the Company’s retention of counsel in accordance with the terms thereof, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; provided, however, that if, under applicable laws and rules of attorney professional conduct, there exists a potential or actual conflict of interest between the Company (or any other person or persons included in a joint defense) and Indemnitee in the conduct of the defense or representation by such counsel retained by the Company and Indemnitee, the Company’s indemnification and expense advancement obligations to Indemnitee under this Agreement shall include reasonable legal fees and reasonable costs incurred by Indemnitee for separate counsel retained by Indemnitee to assume Indemnitee’s defense in such Proceeding; provided, however, that in such circumstances, Indemnitee shall reasonably cooperate with any other directors and officers of the Company involved in the Proceeding to retain a single law firm (and, if appropriate, one local law firm), approved by the Company, which approval will not be unreasonably withheld, delayed or conditioned, to represent Indemnitee and such other director(s) and officer(s), unless (i) Indemnitee or such law firm reasonably concludes the use of such law firm to represent the Indemnitee and such other director(s) or officer(s) would present such counsel with an actual or potential conflict of interest or other significant divergence of interest, or (ii) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, in which case the Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel) at the Company’s expense; provided, that the fewest number of counsels necessary to avoid conflicts of interest shall be used. The existence of an actual or potential conflict, and whether any such conflict may be waived, shall be determined pursuant to the rules of attorney professional conduct and applicable law.