Common use of Selection of Counsel Clause in Contracts

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ counsel in any such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligations, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof 1 or Section 2 to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding Proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such actionProceeding (other than a Proceeding involving criminal proceedings, suit or proceedingin which case the Indemnitee shall be entitled to assume the defense of such Proceeding and the Company shall have the right to employ separate counsel at Company’s expenses), with counsel approved consented to by Indemniteeindemnittee, such consent not being unreasonably withheld, upon the delivery to Indemnitee of written notice within five (5) business days following receipt of notice from Indemnitee pursuant to Section 2(b); provided that (x) the Company shall have acknowledged in writing to the Indemnitee its election so unqualified obligation to doindemnify the Indemnitee as provided hereunder, (y) the Company must conduct such defense actively and diligently thereafter to preserve its rights in this regard. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of any other counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in any such action suit or proceeding Proceeding at Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the reasonable fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against IndemniteeClaim, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingClaim, with counsel approved by the applicable Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to such Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by the Indemnitee and the retention of such counsel by the Company, the Company will not be liable to such Indemnitee under this Agreement for any fees of counsel subsequently incurred by such Indemnitee with respect to the same actionClaim; provided that, suit or proceeding, provided that (i) the Indemnitee shall have the right to employ such Indemnitee’s counsel in any such action suit or proceeding Claim at the Indemnitee's expense; ’s expense and (ii) if (A) the employment of counsel by the Indemnitee has been previously authorized by the Company, (B) such Indemnitee shall have reasonably concluded that there may be is a conflict of interest between the Company and such Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of the Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled have the right to assume conduct such defense as it sees fit in its sole discretion, including the defense of right to settle any claim, action, suit action or proceeding brought by or on behalf against any Indemnitee without the consent of such Indemnitee, provided such settlement includes a full release of the Company against Indemnitee by the claimant from all liabilities or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) abovepotential liabilities under such claim.

Selection of Counsel. In the event Upon notification of the Company shall be obligated under Section 2(a) hereof to pay of the expenses (including attorneys' fees) commencement of any action, suit Proceeding as to which indemnification will or proceeding against Indemniteecould be sought under this Agreement, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionProceeding; provided, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such action suit or proceeding Proceeding at Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company shall notnot within sixty (60) days, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding, then the fees and expenses Expenses of Indemnitee's ’s counsel shall be at the expense of the Company. In the event separate counsel is retained by an Indemnitee pursuant to this Section 2(e), the Company shall cooperate with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding Proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion determination provided for in (ii) (B) or (Dii)(B) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against IndemniteeClaim, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceeding, Claim with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, delayed or conditioned, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionClaim; provided that, suit or proceeding, provided that (i) Indemnitee shall have the right to employ Indemnitee’s counsel in any such action suit or proceeding Claim at Indemnitee's expense; Indemnitee expense and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be is a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall have the right to conduct such defense as it sees fit in its sole discretion; provided, however, that the Company shall not be entitled to assume settle any claim against Indemnitee without the defense consent of any claimthe Indemnitee, actionwhich consent shall not be unreasonably withheld, suit conditioned or proceeding brought delayed, unless the settlement involves only the payment of monetary relief for which the Indemnitee will be indemnified and does not include a statement or an admission of fault or culpability by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveIndemnitee.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a1(a) or (b) hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding Proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by IndemniteeIndemnitee (who shall not unreasonably withhold such approval), upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that that, (i) Indemnitee shall have the right to employ his counsel in any such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized in writing by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense and shall have notified the Company in writing thereof, (C) Indemnitee shall have reasonably concluded that there may be a conflict of interest between Indemnitee and other indemnitees of the Company being represented by counsel retained by the Company in the same Proceeding and shall have notified the Company in writing thereof, or (D) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding within a reasonable time frame, then the reasonable fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company Double-Take shall be obligated under Section 2(a) hereof hereunder to pay provide indemnification for or make any Expense Advances with respect to the expenses (including attorneys' fees) Expenses of any actionClaim, suit or proceeding against Indemnitee, the CompanyDouble-Take, if appropriate, shall be entitled to assume the defense of such action, suit or proceeding, Claim with counsel approved by Indemnitee, Indemnified Person (which approval shall not be unreasonably withheld) upon the delivery to Indemnitee Indemnified Person of written notice of its Double-Take’s election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee Indemnified Person and the retention of such counsel by the CompanyDouble-Take, the Company Double-Take will not be liable to Indemnitee Indemnified Person under this Agreement for any fees or expenses of separate counsel subsequently incurred retained by Indemnitee or on behalf of Indemnified Person with respect to the same actionClaim; provided, suit or proceedingthat, provided that (i) Indemnitee Indemnified Person shall have the right to employ Indemnified Person’s separate counsel in any such action suit or proceeding Claim at Indemnitee's expense; Indemnified Person’s expense and (ii) if (A) the employment of separate counsel by Indemnitee Indemnified Person has been previously authorized by the CompanyDouble-Take, (B) Indemnitee Indemnified Person shall have reasonably concluded that there may be a conflict of interest between the Company Double-Take and Indemnitee Indemnified Person in the conduct of any such defense, or (C) the Company Double-Take shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's Indemnified Person’s separate counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit Expenses for which Indemnified Person may receive indemnification or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveExpense Advances hereunder.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) of or advance Expenses or indemnify Indemnitee with respect to any action, suit or proceeding against IndemniteeLosses, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingany related Claims, with counsel approved selected by Indemniteethe Company; provided that following a Change in Control, upon if any Former Directors or Officers are seeking indemnification in connection with any such Proceeding, such counsel shall be subject to the delivery to Indemnitee prior written approval of written notice a majority of its election so to dosuch Former Directors or Officers who are seeking indemnification, which approval shall not be unreasonably withheld, conditioned or delayed. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyCompany and the receipt of any approval required under the preceding sentence, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actiondefense of such Claims; provided, suit or proceedinghowever, provided that that: (i) Indemnitee shall have the right to employ counsel in connection with any such action suit or proceeding Claim at Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, Company with respect to the period after the Company has retained counsel to defend such Claim and such authorization has not been withdrawn; (B) counsel for Indemnitee shall have reasonably concluded provided the Company with a written opinion that there may is or there is reasonably likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, ; or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against IndemniteeClaim, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingClaim, with legal counsel reasonably approved by the Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to such Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such legal counsel by the Indemnitee and the retention of such legal counsel by the Company, the Company will not be liable to such Indemnitee under this Agreement for any fees of counsel subsequently incurred by such Indemnitee with respect to the same actionClaim; provided that, suit or proceeding, provided that (i) the Indemnitee shall have the right to employ such Indemnitee’s legal counsel in any such action suit Claim at the Indemnitee’s expense; (ii) the Indemnitee shall have the right to employ its own legal counsel in connection with any such proceeding, at the expense of the Company, if such legal counsel serves in a review, observer, advice and counseling capacity and does not otherwise materially control or proceeding at Indemnitee's expenseparticipate in the defense of such proceeding; and (iiiii) if (A) the employment of legal counsel by the Indemnitee has been previously authorized by the Company, (B) such Indemnitee shall have reasonably concluded that there may be is a conflict of interest between the Company and such Indemnitee in the conduct of any such defense, or (C) the Company shall not, not in fact, have employed fact continue to retain such legal counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of the Indemnitee's ’s legal counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated -------------------- under Section 2(a1(a) or (b) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by IndemniteeIndemnitee (which shall not unreasonably withhold such approval), upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that provided, that, (i) Indemnitee shall have the right to employ his counsel in any -------- ---- such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized in writing by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense and shall have notified the Company in writing thereof, (C) Indemnitee shall have reasonably concluded that there may be a conflict of interest between Indemnitee and other indemnitees of the Company being represented by counsel retained by the Company in the same proceeding and shall have notified the Company in writing thereof or (D) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceeding, with counsel selected by the Company and approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ Indemnitee’s counsel in any such action suit or proceeding at Indemnitee's expense; (ii) Indemnitee shall have the right to employ Indemnitee’s own counsel in connection with any such proceeding, upon the Company’s approval at the expense of the Company if such counsel serves only in a review, observer, advice and counseling capacity and does not otherwise materially control or participate in the defense of such proceeding; and (iiiii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled liable to assume the defense indemnify Indemnitee or advance expenses to Indemnitee under this Agreement for any amounts paid in settlement of any claimproceeding effected by Indemnitee without the Company’s written consent, actionwhich consent shall not be unreasonably withheld, suit unless Indemnitee receives court approval for such settlement or proceeding brought by or on behalf of other disposition where the Company against had the opportunity to oppose Indemnitee's request for such court approval. The Company shall be permitted to settle any proceeding except that it shall not settle any proceeding in any manner which would impose any penalty or limitation on Indemnitee or as to which without Indemnitee’s written consent. Neither the Company nor Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveunreasonably withhold its consent to any proposed settlement.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) of or advance Expenses or indemnify Indemnitee with respect to any action, suit or proceeding against IndemniteeLosses, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingany related Claims, with counsel approved selected by Indemniteethe Company; provided that following a Change in Control, upon if any Former Directors or Officers are seeking indemnification in connection with any such Proceeding, such counsel shall be subject to the delivery to Indemnitee prior written approval of written notice a majority of its election so to dosuch Former Directors or Officers who are seeking indemnification, which approval shall not be unreasonably withheld, conditioned or delayed. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyCompany and the receipt of any approval required under the preceding sentence, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, defense of such Claims; provided that that: (i) Indemnitee shall have the right to employ counsel in connection with any such action suit or proceeding Claim at Indemnitee's expense; ’s expense and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyCompany with respect to the period after the Company has retained counsel to defend such Claim and such authorization has not been withdrawn, (B) counsel for Indemnitee shall have reasonably concluded provided the Company with a written opinion that there may is or there is reasonably likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a3(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by IndemniteeIndemnitee (which approval shall not be unreasonably withheld), upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ counsel in any such action action, suit or proceeding at Indemnitee's expense; (ii) Indemnitee shall have the right to employ his/her own counsel in connection with any such action, suit or proceeding at the expense of the Company if such counsel serves in a review, observer, advice and counseling capacity and does not otherwise materially control or participate in the defense of such action, suit or proceeding; and (iiiii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) Expenses of any action, suit suit, proceeding, inquiry or proceeding against Indemniteeinvestigation, the Company, if appropriateexcept as otherwise provided below, shall be entitled to assume the defense of such action, suit or suit, proceeding, inquiry or investigation at its own expense with counsel approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee Indemnitee, and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees of counsel subsequently incurred by the Indemnitee with respect to the same action, suit or suit, proceeding, inquiry or investigation, other than as provided that below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee's written consent (i) which approval shall not be unreasonably withheld). The Indemnitee shall have the right to employ Indemnitee's own counsel in any such action suit action, suit, proceeding, inquiry or proceeding investigation, but the fees and expenses of such counsel incurred after written notice from the Company of its assumption of the defense thereof shall be at the expense of the Indemnitee's expense; and , unless (ii) if (Ai) the employment of counsel by the Indemnitee has been previously authorized by the Company, or, following a Change in Control (Bother than a Change in Control approved by a majority of the members of the Board of Directors who were directors immediately prior to such Change in Control), the employment of counsel by the Indemnitee has been approved by the Independent Legal Counsel, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defense, or (Ciii) the Company shall not, not in fact, fact have employed or retained or shall not in fact continue to employ or retain counsel to assume the defense of such action, suit suit, proceeding, inquiry or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsinvestigation, then in each of which cases the fees and expenses of the Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume or control the defense of any claim, action, suit suit, proceeding, inquiry or proceeding investigation brought by or on behalf of the Company against Indemnitee or as to which the Indemnitee shall have has made the conclusion provided for in (ii) (B) or (D) abovethat there may be a conflict of interest between the Company and the Indemnitee.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof hereunder to pay provide indemnification for or make any Expense Advances with respect to the expenses (including attorneys' fees) Expenses of any action, suit Proceeding or proceeding against IndemniteeClaim, the Company, if appropriate, shall be entitled to assume the defense of such action, suit Proceeding or proceeding, Claim with counsel approved by IndemniteeIndemnitee (which approval shall not be unreasonably withheld, conditioned or delayed) upon the delivery to Indemnitee of a written notice of its the Company’s election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses of separate counsel subsequently incurred employed by or on behalf of Indemnitee with respect to the same actionProceeding or Claim; provided, suit or proceedinghowever, provided that (i) Indemnitee shall have the right to employ Indemnitee’s separate counsel in any such action suit Proceeding or proceeding Claim at Indemnitee's expense; ’s expense and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded (based on legal advice) that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's ’s separate counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to Expenses for which Indemnitee shall have made the conclusion provided for in (ii) (B) may receive indemnification or (D) aboveExpense Advances hereunder.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a2(b) hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against Indemnitee, the Company, if appropriateunless the Indemnitee determines that a conflict of interest exists between the Indemnitee and the Company with respect to a particular Claim, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld and which shall be granted to a choice of counsel selected by the insurance company which provided director and officer liability insurance for the Company, upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will be not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his own separate counsel in any such action suit proceeding in addition to or proceeding in place of any counsel retained by the Company on behalf of Indemnitee at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) of or advance Expenses or indemnify Indemnitee with respect to any action, suit or proceeding against IndemniteeLosses, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingany related Claims, with counsel approved selected by Indemniteethe Company; provided that following a Change in Control, upon if any Former Directors or Officers are seeking indemnification in connection with any such Proceeding, such counsel shall be subject to the delivery to Indemnitee prior written approval of written notice a majority of its election so to dosuch Former Directors or Officers who are seeking indemnification, which approval shall not be unreasonably withheld, conditioned or delayed. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyCompany and the receipt of any approval required under the preceding sentence, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, defense of such Claims; provided that (i) Indemnitee shall have the right to employ counsel in connection with any such action suit or proceeding Claim at Indemnitee's expense; , and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyCompany with respect to the period after the Company has retained counsel to defend such Claim and such authorization has not been withdrawn, (B) counsel for Indemnitee shall have reasonably concluded provided the Company with a written legal opinion that there may be is, or there is reasonably likely to be, a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company VPUR shall be obligated under Section 2(a) hereof 0 of this Agreement to pay the expenses (including attorneys' fees) of any actionProceeding involving the Indemnified Party, suit or proceeding against Indemnitee, the Company, if appropriate, VPUR shall be entitled to participate in such Proceeding and, to the extent it shall wish, to assume the defense of such action, suit or proceedingProceeding, with counsel chosen by VPUR and approved by Indemniteethe Indemnified Party, upon which approval shall not be unreasonably withheld or delayed. Upon the delivery to Indemnitee the Indemnified Party of written notice of its election so to do. After delivery of assume such noticedefense, approval of such counsel by Indemnitee the Indemnified Party and the retention of such counsel by the CompanyVPUR, the Company VPUR will not be liable to Indemnitee the Indemnified Party under this Agreement for any fees of counsel or other expenses subsequently incurred by Indemnitee the Indemnified Party in connection with respect to the defense of the same actionProceeding, suit or proceedingexcept for fees and expenses incurred by the Indemnified Party as a consequence of the Indemnified Party's obligation to cooperate with VPUR in the defense of such matters (as set forth in Section 0 of this Agreement). Notwithstanding the foregoing, provided that the reasonable fees and expenses of the Indemnified Party's counsel shall be paid by VPUR only if (i) Indemnitee shall have the right to employ counsel in any such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee the Indemnified Party has been previously authorized by the CompanyVPUR, (Bii) Indemnitee the Indemnified Party shall have reasonably concluded that that, under applicable standards of professional responsibility applicable to attorneys, there may be a material conflict of interest between VPUR and the Company and Indemnitee Indemnified Party in the conduct of any such defensedefense or that such counsel and the Indemnified Party have fundamental and material disagreements as to the proper method of managing the litigation, or (Ciii) the Company VPUR shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) Proceeding. The Indemnified Party shall have the Company is not financially or legally able right to perform its indemnification obligations, then the fees and expenses of Indemnitee's employ his own counsel shall be in any such Proceeding at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveIndemnified Party's expense.

Selection of Counsel. In the event the Company shall may be obligated under Section 2(a) hereof to pay the expenses (including attorneys' fees) of make any action, suit or proceeding against Indemniteeindemnity in connection with a Proceeding, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceeding, Proceeding at its own expense with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses of separate counsel subsequently incurred employed by or on behalf of Indemnitee with respect to the same actionProceeding. Notwithstanding the Company’s assumption of the defense of any such Proceeding, suit or proceeding, provided that the Company shall be obligated to pay the fees and expenses of Indemnitee’s counsel to the extent (i) Indemnitee shall have the right to employ counsel in any such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously is authorized by the Company, (Bii) counsel for the Company or Indemnitee shall have reasonably concluded that there may be is a conflict of interest between the Company and Indemnitee in the conduct of any such defense such that Indemnitee needs to be separately represented, (iii) the fees and expenses are non-duplicative and reasonably incurred in connection with Indemnitee’s role in the Proceeding despite the Company’s assumption of the defense, (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (Div) the Company is not financially or legally able to perform its indemnification obligationsobligations or (v) the Company shall not have retained, then or shall not continue to retain, such counsel to defend such Proceeding. Regardless of any provision in this Agreement, Indemnitee shall have the fees and expenses of right to employ counsel in any Proceeding at Indemnitee's counsel shall be at the expense of the Company’s personal expense. The Company shall not be entitled entitled, without the consent of Indemnitee, to assume the defense of any claim, action, suit or proceeding claim brought by or on behalf in the right of the Company. Indemnitee agrees to consult with the Company against and to consider in good faith the advisability and appropriateness of joint representation in the event that either the Company or other indemnitees in addition to Indemnitee or as to which Indemnitee shall have made the conclusion provided for require representation in (ii) (B) or (D) aboveconnection with any Proceeding.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a3(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ counsel in any such action suit or proceeding at Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The As long as the Company has otherwise complied with the terms hereof, the Company shall not be entitled have the right to assume conduct such defense as it sees fit in its sole discretion, including the defense of right to settle any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee without the consent of Indemnitee, provided such settlement includes a full release of Indemnitee by the claimant from all liabilities or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) potential liabilities under such action, suit or (D) aboveproceeding.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceeding, proceeding with counsel approved selected by Indemniteethe Company, if it and such counsel may appropriately do so under applicable legal and ethical requirements and subject to the approval of such counsel by Indemnitee (which approval shall not be unreasonably withheld or delayed), upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will shall not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionproceeding; provided, suit or proceeding, provided that (i) Indemnitee shall have the right to employ counsel of Indemnitee's choice in any such action suit or proceeding at Indemnitee's expense; , and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, not in fact, fact have employed counsel to assume the defense of such actionproceeding within thirty (30) days of its notice of intention to assume the defense of the proceeding, suit or proceeding or (D) such shorter period as shall be necessary to avoid adversely affecting the Company is not financially or legally able to perform its indemnification obligationsdefense of Indemnitee, then then, in any of the foregoing cases, the fees and expenses of Indemnitee's counsel shall be at the expense of paid by the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company Indemnitors shall be obligated under Section 2(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, Indemnitors, unless Indemnitee determines that a conflict of interest exists between the Company, if appropriateIndemnitee and Indemnitors with respect to a particular claim, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyIndemnitors, the Company Indemnitors will be not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his own separate counsel in any such action suit proceeding in addition to or proceeding in place of any counsel retained by Indemnitors on behalf of Indemnitee at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyIndemnitors, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company Indemnitors and Indemnitee in the conduct of any such defense, defense or (C) the Company Indemnitors shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveIndemnitors.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) of or advance Expenses or indemnify Indemnitee with respect to any action, suit or proceeding against IndemniteeLosses, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingany related Claims, with counsel approved selected by the Company and reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of its election so to dowhich approval shall not be unreasonably withheld, conditioned or delayed. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyCompany and the receipt of any approval required under the preceding sentence, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actiondefense of such Claims; provided, suit or proceedinghowever, provided that that: (i) Indemnitee shall have the right to employ counsel in connection with any such action suit or proceeding Claim at Indemnitee's expense; ’s expense and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyCompany with respect to the period after the Company has retained counsel to defend such Claim and such authorization has not been withdrawn, (B) counsel for Indemnitee shall have reasonably concluded or counsel for the Company has provided the Company with a written opinion that there may is or there is reasonably likely to be a conflict of interest between the Company and Indemnitee on any significant issue in the conduct of any such defense, defense or (C) the Company shall not, in fact, have employed has ceased its retention of such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled entitled, without the consent of Indemnitee, to assume 4894-3716-4339v.1 the defense of any claim, action, suit or proceeding Claim brought by or on behalf in the right of the Company against Indemnitee or as to which counsel for the Company or counsel for the Indemnitee shall have reasonably made the conclusion provided for in (ii) clause (B) or (D) abovein the immediately preceding sentence.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. Notwithstanding the foregoing, the Company shall not be permitted to settle any action or claim on behalf of Indemnitee in any manner which would require any acknowledgment of wrongdoing on the part of Indemnitee without Indemnitee's written consent, which consent shall not be unreasonably withheld. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his counsel in any such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated -------------------- under Section 2(a1(b) or (c) hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding Proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by IndemniteeIndemnitee (who shall not unreasonably withhold such approval), upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that that, (i) Indemnitee ------------- shall have the right to employ Indemnitee's counsel in any such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized in writing by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense and shall have notified the Company in writing thereof, (C) Indemnitee shall have reasonably concluded that there may be a conflict of interest between Indemnitee and other indemnitees of the Company being represented by counsel retained by the Company in the same Proceeding and shall have notified the Company in writing thereof, or (D) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding within a reasonable time frame, then the reasonable fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a3(a) hereof to pay advance the expenses (including attorneys' fees) of any action, suit or proceeding Proceeding against Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election so to doand approval of counsel by Indemnitee, which approval shall not be unreasonably withheld. After the delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will shall not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionProceeding, suit or proceeding, except as provided that (i) below. The Indemnitee shall have the right to employ his or her own counsel in any such action suit or proceeding Proceeding at Indemnitee's expense; and ’s expense unless: (ii) if (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have reasonably concluded that there may be a material conflict of interest between the Company and Indemnitee in the conduct of any such defense, (Ciii) the Company shall not, in fact, have employed counsel to assume the defense of such actionProceeding, suit or proceeding or (Div) the Company is not financially or legally able to perform its indemnification obligationsfees and expenses are non-duplicative and reasonably incurred in connection with Indemnitee’s role in the Proceeding despite the Company’s assumption of the defense, then in each of which cases the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding Proceeding brought by or on behalf of the Company against Indemnitee Company, or as to which Indemnitee shall have made the conclusion determination provided for in (ii) above or under the circumstances provided for in (B) or (Diii) above. Indemnitee agrees that any such separate counsel retained by Indemnitee will be a member of any approved list of panel counsel under the Company’s applicable directors’ and officers’ insurance policy, should the applicable policy provide for a panel of approved counsel and should such approved panel list comprise law firms with well-established reputations in the type of litigation at issue.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) 8 hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding Proceeding against Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently paid or incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that (ia) Indemnitee shall have the right to employ his counsel in any such action suit or proceeding Proceeding at Indemnitee's ’s expense; and (iib) if (A1) the employment of counsel by Indemnitee has been previously authorized by the Company, (B2) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company (or any other person or persons included in a joint defense) and Indemnitee in the conduct of any such defense or representation by such counsel retained by the Company which would preclude such counsel from representing both the Indemnitee and the Company (or any other person or persons included in a joint defense) under the applicable standards of professional conduct, or (C3) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding Proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have reasonably made the conclusion provided for in (ii) (B) or (D2) above.

Selection of Counsel. In the event With respect to any Proceeding as to which Indemnitee notifies the Company shall be obligated under Section 2(a) hereof to pay of the expenses (including attorneys' fees) of any action, suit or proceeding against Indemniteecommencement thereof, the Company, if appropriate, shall Company will be entitled to participate in the Proceeding at its own expense and except as otherwise provided below, to the extent the Company so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from the Company to Indemnitee of its election to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Companyany Proceeding, the Company will shall not be liable to Indemnitee under this Agreement or otherwise for any fees of counsel Expenses subsequently incurred by Indemnitee in connection with respect to the same action, suit defense of such Proceeding other than reasonable costs of investigation or proceeding, as otherwise provided that (i) below. Indemnitee shall have the right to employ legal counsel in any such action suit or proceeding Proceeding, but all Expenses related thereto incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense; and ’s expense unless: (ii) if (Ai) the employment of legal counsel by Indemnitee has been previously authorized by the Company, ; (Bii) Indemnitee shall have has reasonably concluded determined that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct defense of any such defensethe Proceeding; (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the independent counsel appointed pursuant to Section 6 hereof or (Civ) the Company shall not, not in fact, fact have employed counsel to assume the defense of such actionProceeding, suit or proceeding or (D) in each of which cases all Expenses of the Company is not financially or legally able to perform its indemnification obligations, then the fees and expenses of Indemnitee's counsel Proceeding shall be at the expense of borne by the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding Proceeding brought by or on behalf of the Company against Indemnitee Company, or as to which Indemnitee shall have made the conclusion determination provided for in (ii) above or under the circumstances provided for in (Biii) or and (Div) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) 2 hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, Trust shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by IndemniteeIndemnitee (who shall not unreasonably withhold such approval), upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyTrust, the Company Trust will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that that, (i) Indemnitee shall have the right to employ Indemnitee’s counsel in any such action suit or proceeding at Indemnitee's ’s expense; , and (ii) the reasonable fees and expenses of Indemnitee’s counsel shall be at the expense of the Trust if (A) the employment of counsel by Indemnitee has been previously authorized in writing by the CompanyTrust, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company Trust and Indemnitee in the conduct of any such defensedefense and shall have notified the Trust in writing thereof, (C) Indemnitee shall have reasonably concluded that there may be a conflict of interest between Indemnitee and other indemnitees of the Company Trust being represented by counsel retained by the Trust in the same proceeding and shall have notified the Trust in writing thereof, or (D) the Trust shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligations, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) abovewithin a reasonable time frame.

Selection of Counsel. In the event the Company Indemnifying Parties shall be obligated under Section 2(a) 7 hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding Proceeding against Indemnitee, the CompanyIndemnifying Parties, if appropriate, shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably delayed, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyIndemnifying Parties, the Company Indemnifying Parties will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such action suit or proceeding Proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee Xxxxxxxxxx has been previously authorized by the CompanyIndemnifying Parties, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company Indemnifying Parties and Indemnitee in the conduct of any such defense, defense or (C) the Company Indemnifying Parties shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding, then the fees and expenses Expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveIndemnifying Parties.

Selection of Counsel. In the event the Company shall be -------------------- obligated under Section 2(a) hereof this ARTICLE 3 to pay the expenses (including attorneys' fees) of any action, suit or proceeding against indemnify Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. In this regard, Loeb & Loeb LLP is hereby approved by Indemnitee as counsel for the Company. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will shall not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that (i) Indemnitee shall have the right to employ his own counsel in any such action suit or proceeding Proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of borne by the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) of or advance Expenses or indemnify Indemnitee with respect to any action, suit or proceeding against IndemniteeLosses, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingany related Claims, with counsel approved selected by the Company; provided that such counsel shall be subject to the prior written approval of Indemnitee, upon the delivery to Indemnitee of written notice of its election so to dowhich approval shall not be unreasonably withheld, conditioned or delayed. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyCompany and the receipt of any approval required under the preceding sentence, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, defense of such Claims; provided that (i) Indemnitee shall have the right to employ counsel in connection with any such action suit or proceeding Claim at Indemnitee's ’s expense; , and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyCompany with respect to the period after the Company has retained counsel to defend such Claim and such authorization has not been withdrawn, (B) counsel for Indemnitee shall have reasonably concluded provided the Company with a written legal opinion that there may be is, or there is reasonably likely to be, a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated -------------------- under Section 2(a1(b) or (c) hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding Proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by IndemniteeIndemnitee (who shall not unreasonably withhold such approval), upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that that, (i) Indemnitee -------- ---- shall have the right to employ Indemnitee's counsel in any such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized in writing by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense and shall have notified the Company in writing thereof, (C) Indemnitee shall have reasonably concluded that there may be a conflict of interest between Indemnitee and other indemnitees of the Company being represented by counsel retained by the Company in the same Proceeding and shall have notified the Company in writing thereof, or (D) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding within a reasonable time frame, then the reasonable fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) of or advance Expenses or indemnify Indemnitee with respect to any action, suit or proceeding against IndemniteeLosses, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingany related Claims, with counsel approved selected by the Company; provided, that such counsel shall be subject to the prior written approval of Indemnitee, upon the delivery to Indemnitee of written notice of its election so to dowhich approval shall not be unreasonably withheld, conditioned or delayed. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyCompany and the receipt of any approval required under the preceding sentence, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actiondefense of such Claims; provided, suit or proceeding, provided that (i) Indemnitee shall have the right to employ counsel in connection with any such action suit or proceeding Claim at Indemnitee's ’s expense; , and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyCompany with respect to the period after the Company has retained counsel to defend such Claim and such authorization has not been withdrawn, (B) counsel for Indemnitee shall have reasonably concluded provided the Company with a written legal opinion that there may be is, or there is reasonably likely to be, a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a3(a) hereof to pay advance the expenses (including attorneys' fees) of any action, suit or proceeding Proceeding against Indemnitee, the CompanyIndemnitee shall have the right to control and defend such Proceeding in such manner as it may deem appropriate. Should Indemnitee decline to control and defend the Proceeding, if appropriate, the Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election so to doand approval of counsel by Indemnitee, which approval shall not be unreasonably withheld. After the delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will shall not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionProceeding, suit or proceeding, except as provided that (i) below. The Indemnitee shall have the right to employ his or her own counsel in any such action suit or proceeding at Indemnitee's expense; and ’s expense unless: (ii) if (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee shall have reasonably concluded that there may be a material conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (Ciii) the Company shall not, in fact, have employed counsel to assume the defense of such actionProceeding, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligations, then in each of which cases the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be settle any Proceeding (in whole or in part) if such settlement would impose any Expense, judgment, liability, fine, penalty or limitation on Indemnitee which Indemnitee is not entitled to assume be indemnified hereunder without the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveIndemnitee’s prior written consent.

Selection of Counsel. In connection with the event the Company shall be obligated under Section 2(a) hereof to pay the expenses (including attorneys' fees) defense of any action, suit or proceeding Proceeding against an Indemnitee, the Company, if appropriate, Indemnitor shall be entitled to assume the defense of such actionProceeding (other than a Proceeding involving criminal proceedings, suit or proceedingin which case the Indemnitee shall be entitled to assume the defense of such Proceeding and the Indemnitor shall have the right to employ separate counsel at Indemnitor’s expense), with counsel approved consented to by the Indemnitee, such consent not being unreasonably withheld, upon the delivery to the Indemnitee of written notice within ten (10) business days following receipt of notice from the Indemnitee pursuant to Section 2(c); provided that (i) the Indemnitor shall have acknowledged in writing to the Indemnitee its election so obligation, subject to dothe provisions of this Agreement, to indemnify the Indemnitee as provided hereunder, and (ii) the Indemnitor must conduct such defense in a commercially reasonable manner thereafter to preserve its rights in this regard. After delivery of such notice, approval of such counsel by the Indemnitee and the retention of such counsel by the CompanyIndemnitor, the Company Indemnitor will not be liable to the Indemnitee under this Agreement for any fees of any other counsel subsequently incurred by the Indemnitee with respect to the same action, suit or proceeding, Proceeding; provided that (ix) the Indemnitee shall have the right to employ separate counsel in any such action suit or proceeding Proceeding at the Indemnitee's ’s expense; and (iiy) if (A) the employment of counsel by the Indemnitee has been previously authorized by the CompanyIndemnitor, (B) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company Indemnitor and the Indemnitee in the conduct of any such defense, or (C) the Company shall Indemnitor has not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding, then the reasonable fees and expenses of the Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveIndemnitor.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a1(a) or (b) hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by IndemniteeIndemnitee (who shall not unreasonably withhold such approval), upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that that, (i) Indemnitee shall have the right to employ his or her counsel in any such action suit or proceeding at Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized in writing by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense and shall have notified the Company in writing thereof, (C) Indemnitee shall have reasonably concluded that there may be a conflict of interest between Indemnitee and other indemnitees of the Company being represented by counsel retained by the Company in the same Proceeding and shall have notified the Company in writing thereof, or (D) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding within a reasonable time frame, then the reasonable fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a1(a) or (b) hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding Proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by IndemniteeIndemnitee (who shall not unreasonably withhold such approval), upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that that, (i) Indemnitee shall have the right to employ Indemnitee’s counsel in any such action suit or proceeding at Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized in writing by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defensedefense and shall have notified the Company in writing thereof, (C) Indemnitee shall have reasonably concluded that there may be a conflict of interest between Indemnitee and other indemnitees of the Company being represented by counsel retained by the Company in the same Proceeding and shall have notified the Company in writing thereof, or (D) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding within a reasonable time frame, then the reasonable fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) of or advance Expenses or indemnify Indemnitee with respect to any action, suit or proceeding against IndemniteeLosses, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingany related Claims, with counsel approved selected by the Company and reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of its election so to dowhich approval shall not be unreasonably withheld, conditioned or delayed. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyCompany and the receipt of any approval required under the preceding sentence, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actiondefense of such Claims; provided, suit or proceedinghowever, provided that that: (i) Indemnitee shall have the right to employ counsel in connection with any such action suit or proceeding Claim at Indemnitee's expense; ’s expense and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyCompany with respect to the period after the Company has retained counsel to defend such Claim and such authorization has not been withdrawn, (B) counsel for Indemnitee shall have reasonably concluded or counsel for the Company has provided the Company with a written opinion that there may is or there is reasonably likely to be a conflict of interest between the Company and Indemnitee on any significant issue in the conduct of any such defense, defense or (C) the Company shall not, in fact, have employed has ceased its retention of such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled entitled, without the consent of Indemnitee, to assume the defense of any claim, action, suit or proceeding Claim brought by or on behalf in the right of the Company against Indemnitee or as to which counsel for the Company or counsel for the Indemnitee shall have reasonably made the conclusion provided for in (ii) clause (B) or (D) abovein the immediately preceding sentence.

Selection of Counsel. In the event the Company Trust shall be obligated under Section 2(a2(b) hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against Indemnitee, the CompanyTrust, if appropriateunless the Indemnitee determines that a conflict of interest exists between the Indemnitee and the Trust with respect to a particular Claim, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyTrust, the Company Trust will be not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his own separate counsel in any such action suit proceeding in addition to or proceeding in place of any counsel retained by the Trust on behalf of Indemnitee at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyTrust, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company Trust and Indemnitee in the conduct of any such defense, defense or (C) the Company Trust shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveTrust.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceeding, proceeding with counsel approved selected by Indemniteethe Company, if it and such counsel may appropriately do so under applicable legal and ethical requirements and subject to the approval of such counsel by Indemnitee (which approval shall not be unreasonably withheld or delayed), upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will shall not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionproceeding; provided, suit or proceeding, provided that (i) Indemnitee shall have the right to employ counsel of Indemnitee’s choice in any such action suit or proceeding at Indemnitee's ’s expense; , and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, not in fact, fact have employed counsel to assume the defense of such actionproceeding within thirty (30) days of its notice of intention to assume the defense of the proceeding, suit or proceeding or (D) such shorter period as shall be necessary to avoid adversely affecting the Company is not financially or legally able to perform its indemnification obligationsdefense of Indemnitee, then then, in any of the foregoing cases, the fees and expenses of Indemnitee's ’s counsel shall be at the expense of paid by the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated -------------------- under Section 2(a2(b) hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against Indemnitee, the Company, if appropriateunless the Indemnitee determines that a conflict of interest exists between the Indemnitee and the Company with respect to a particular Claim, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will be not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his own separate counsel in any such action suit proceeding in addition to or proceeding in place of any counsel retained by the Company on behalf of Indemnitee at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event Upon notification of the Company shall be obligated under Section 2(a) hereof to pay of the expenses (including attorneys' fees) commencement of any action, suit or proceeding against Indemniteeas to which indemnification will or could be sought under this Agreement, the Company, if appropriate, Company or an Affiliated Entity shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding; provided, provided that (ia) Indemnitee shall have the right to employ his or her own counsel in any such action action, suit or proceeding at Indemnitee's ’s expense; and (iib) if (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, (Bii) Indemnitee and the Company shall have reasonably concluded that there may be a conflict of interest between the Company or an Affiliated Entity, as applicable, and Indemnitee in the conduct of any such defense, defense or (Ciii) the Company or an Affiliated Entity shall notnot within sixty (60) days, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses Expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The In the event separate counsel is retained by an Indemnitee pursuant to this Section 5, the Company shall not cooperate with Indemnitee with respect to the defense of the action, suit or proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. Neither the Company nor any Affiliated Entity shall be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or an Affiliated Entity or as to which Indemnitee and the Company shall have made the conclusion determination provided for in (ii) (B) or (Db)(ii) above.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) of or advance Expenses or indemnify Indemnitee with respect to any action, suit or proceeding against IndemniteeLosses, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingany related Claims, with counsel approved selected by Indemniteethe Company, upon PROVIDED THAT following a Change in Control, if any Former Directors are seeking indemnification in connection with any such Proceeding, such counsel shall be subject to the delivery to Indemnitee prior written approval of written notice a majority of its election so to dosuch Former Directors who are seeking indemnification, which approval shall not be unreasonably withheld or delayed. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyCompany and the receipt of any approval required under the preceding sentence, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that defense of such Claims; PROVIDED THAT: (i) Indemnitee shall have the right to employ counsel in connection with any such action suit or proceeding Claim at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) counsel for Indemnitee shall have reasonably concluded provided the Company with written advice that there may reasonably be expected to exist a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall may not be entitled settle or compromise any claim or consent to assume the defense entry of any claim, action, suit or proceeding brought by or on behalf judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Company against Indemnitee or as (such consent not to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) abovebe unreasonably withheld).

Selection of Counsel. In the event that the Company shall be obligated under Section 2(a) hereof this Agreement to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding Proceeding against the Indemnitee, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemniteethe Indemnitee (who shall not unreasonably withhold such approval), upon the delivery to the Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by the Indemnitee and the retention of such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement for any fees of counsel subsequently incurred by the Indemnitee with respect to the same actionProceeding; provided, suit or proceeding, provided that (i) the Indemnitee shall have the right to employ his or her own counsel in any such action suit or proceeding Proceeding at the Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by the Indemnitee has been previously authorized in writing by the Company, (B) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of any such defensedefense and shall have notified the Company in writing thereof, (C) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Indemnitee and other indemnitees of the Company being represented by counsel retained by the Company in the same Proceeding and shall have notified the Company in writing thereof, or (D) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding within a reasonable time frame, then the reasonable fees and expenses of the Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In Upon notification by the event Indemnitee to the Company shall be obligated under Section 2(a) hereof to pay of the expenses (including attorneys' fees) commencement of any action, suit Proceeding as to which indemnification will or proceeding against Indemniteecould be sought under this Agreement, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionProceeding; provided, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such action suit or proceeding Proceeding at Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company shall notnot within sixty (60) days of delivering notice to Indemnitee of its election to assume the defense of such Proceeding, in fact, have employed retained counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding, then the fees and expenses Expenses of Indemnitee's ’s counsel shall be at the expense of the Company. In the event separate counsel is retained by Indemnitee pursuant to this Section 4(e), the Company shall cooperate with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding Proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion determination provided for in (ii) (B) or (Dii)(B) above.

Selection of Counsel. In the event the Company Indemnifying Parties shall be obligated under Section 2(a) 7 hereof to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding Proceeding against Indemnitee, the CompanyIndemnifying Parties, if appropriate, shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably delayed, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyIndemnifying Parties, the Company Indemnifying Parties will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such action suit or proceeding Proceeding at Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyIndemnifying Parties, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company Indemnifying Parties and Indemnitee in the conduct of any such defense, defense or (C) the Company Indemnifying Parties shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding, then the fees and expenses Expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveIndemnifying Parties.

Selection of Counsel. In the event the Company shall be is obligated under Section 2(a) 7 hereof to pay pay, and pays the expenses (including attorneys' fees) Expenses of any action, suit or proceeding Proceeding against Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceedingProceeding, provided that (i) Indemnitee shall have the right to employ his counsel in any such action suit or proceeding Proceeding at Indemnitee's ’s expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, (C) the counsel previously authorized by the Company is representing any other person indemnified by the Company, Indemnitee shall have reasonably concluded that there may be a conflict of interest between such other person and the Indemnitee in the conduct of any such defense, (D) a Change in Control shall have occurred or (E) the Company shall not, in fact, have promptly employed counsel approved by the Indemnitee to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event If the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) of or advance Expenses or indemnify Indemnitee with respect to any action, suit or proceeding against IndemniteeLosses, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingany related Claims, with counsel approved selected by the Company; provided, however, that following a Change of Control, such counsel shall be subject to the prior written approval of Indemnitee, upon the delivery to Indemnitee of written notice of its election so to dowhich approval shall not be unreasonably withheld, conditioned or delayed. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyCompany and the receipt of any approval required under the preceding sentence, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actiondefense of such Claims; provided, suit or proceeding, provided that (i) Indemnitee shall have the right to employ counsel in connection with any such action suit or proceeding Claim at Indemnitee's ’s expense; , and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyCompany with respect to the period after the Company has retained counsel to defend such Claim and such authorization has not been withdrawn, (B) counsel for Indemnitee shall have reasonably concluded provided the Company with a written legal opinion that there may be is, or there is reasonably likely to be, a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's ’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event With respect to any litigation or other legal action relating to a Claim as to which Indemnitee notifies the Company shall (for purposes of this Section 6, a "Proceeding"), the Company will be obligated under Section 2(a) hereof entitled to pay participate in the expenses (including attorneys' fees) of any actionProceeding at its own expense and except as otherwise provided below, suit or proceeding against to the extent the Company so wishes, it may assume the defense thereof with counsel selected by the Company and approved by Indemnitee, which approval shall not be unreasonably withheld. After notice from the Company, if appropriate, shall be entitled Company to Indemnitee of its election to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Companyany Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any fees of counsel expenses subsequently incurred by Indemnitee in connection with respect to the same action, suit defense of such Proceeding other than reasonable costs of investigation or proceeding, as otherwise provided that (i) below. Indemnitee shall have the right to employ his own counsel in any such action suit or proceeding Proceeding, but all expenses related thereto incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense; and expense unless: (ii) if (Ai) the employment of counsel by Indemnitee has been previously authorized by the Company, ; (Bii) Indemnitee has reasonably determined and either the Company shall have reasonably concluded agreed, or disinterested counsel (as defined in this Section 6(c)) shall have determined, that there may be a conflict of interest between Indemnitee and the Company and Indemnitee in the conduct defense of any such defensethe Proceeding; (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel; or (Civ) the Company shall not, not in fact, fact have employed counsel to assume the defense of such actionProceeding, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligations, then the fees and in each of which case all expenses of the Proceeding shall be borne by the Company, and Indemnitee's counsel shall have been approved by the Company (which approval may not be at unreasonably withheld) and any carrier of an applicable insurance policy if required under the expense terms of that policy or under applicable law. As used in this Section 6(c), "disinterested counsel" shall mean counsel selected and compensated by the Company, and approved by Indemnitee (which approval may not be unreasonably withheld), to determine whether a conflict of interest may exist, which counsel shall not represent the Company, Indemnitee or any other party to the Proceeding for which indemnification is sought. Disinterested counsel shall be selected promptly following the notice from Indemnitee to the Company of Indemnitee's belief that a conflict of interest may exist. The Company company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or Proceeding as to which Indemnitee shall have made the conclusion determination provided for in (ii) (B) or (D) aboveabove shall have been made. Nothing herein shall limit the right of Indemnitee to employ counsel at Indemnitee's sole expense.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof to pay the Indemnitee’s expenses (including attorneys' fees) of in connection with any action, suit or proceeding against IndemniteeProceeding, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, Proceeding; provided that (i) Indemnitee shall have the right to employ Indemnitee’s counsel in any such action suit or proceeding Proceeding at Indemnitee's ’s expense; and (ii) provided further that if (Ai) the Company has expressly authorized (and continues to authorize) the employment of counsel by Indemnitee has been previously authorized at the Company’s expense, (ii) the use of counsel chosen by the Company, (B) Company to represent Indemnitee shall have reasonably concluded that there may be would present such counsel with a conflict of interest between the Company and Indemnitee in the conduct of any such defenseinterest, or (Ciii) the Company shall not, in fact, have employed counsel reasonably satisfactory to assume Indemnitee within a reasonable time after notice of the defense institution of such actionProceeding, suit or proceeding or (D) Indemnitee shall have the Company is not financially or legally able right to perform its indemnification obligations, then the fees and expenses of Indemnitee's employ counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveaccordance herewith.

Selection of Counsel. In the event the Company CACI shall be obligated under Section 2(a4(a) hereof of this Agreement to pay the expenses (including attorneys' fees) of any actionProceeding involving the Indemnified Party, suit or proceeding against Indemnitee, the Company, if appropriate, CACI shall be entitled to participate in such Proceeding and, to the extent it shall wish, to assume the defense of such action, suit or proceedingProceeding, with counsel chosen by CACI and approved by Indemniteethe Indemnified Party, upon which approval shall not be unreasonably withheld or delayed. Upon the delivery to Indemnitee the Indemnified Party of written notice of its election so to do. After delivery of assume such noticedefense, approval of such counsel by Indemnitee the Indemnified Party and the retention of such counsel by the CompanyCACI, the Company CACI will not be liable to Indemnitee the Indemnified Party under this Agreement for any fees of counsel or other expenses subsequently incurred by Indemnitee the Indemnified Party in connection with respect to the defense of the same actionProceeding, suit or proceedingexcept for fees and expenses incurred by the Indemnified Party as a consequence of the Indemnified Party’s obligation to cooperate with CACI in the defense of such matters (as set forth in Section 4(d) of this Agreement). Notwithstanding the foregoing, provided that the reasonable fees and expenses of the Indemnified Party’s counsel shall be paid by CACI only if (i) Indemnitee shall have the right to employ counsel in any such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee the Indemnified Party has been previously authorized by the CompanyCACI, (Bii) Indemnitee the Indemnified Party shall have reasonably concluded that that, under applicable standards of professional responsibility applicable to attorneys, there may be a material conflict of interest between CACI and the Company and Indemnitee Indemnified Party in the conduct of any such defensedefense or that such counsel and the Indemnified Party have fundamental and material disagreements as to the proper method of managing the litigation, or (Ciii) the Company CACI shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) Proceeding. The Indemnified Party shall have the Company is not financially or legally able right to perform its indemnification obligations, then the fees and expenses of Indemnitee's employ his own counsel shall be in any such Proceeding at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveIndemnified Party’s expense.

Selection of Counsel. In the event the Company shall be is obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against IndemniteeClaim, the Company, if appropriate, Company shall be entitled to participate in the proceeding and assume the control of the defense of such action, suit or proceedingClaim, with counsel reasonably approved by IndemniteeIndemnitee (such approval shall not be unreasonably withheld, delayed or conditioned), upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionClaim; provided that, suit or proceeding, provided that (i) Indemnitee shall have the right to employ Indemnitee’s counsel in any such action suit or proceeding Claim at Indemnitee's ’s sole expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably the right to employ Indemnitee’s own counsel in connection with such proceeding, at the expense of the Company, if such counsel serves in a review, observer, advice and counseling capacity and does not otherwise materially control or participate in the defense of such Claim; and (iii) if the Company and Indemnitee have mutually concluded that there may be is a conflict of interest between the Company and Indemnitee them in the conduct of any such defense, (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then Indemnitee is entitled to retain its own counsel and the reasonable fees and expenses of Indemnitee's ’s counsel reasonably approved by the Company (such approval shall not be unreasonably withheld, delayed or conditioned) shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.Indemnification Agreement - Molina - 5 -

Selection of Counsel. In the event the Company shall be is obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against IndemniteeClaim, the Company, if appropriate, Company shall be entitled to participate in the proceeding and assume the control of the defense of such action, suit or proceedingClaim, with counsel reasonably approved by IndemniteeIndemnitee (such approval shall not be unreasonably withheld, delayed or conditioned), upon the delivery to Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionClaim; provided that, suit or proceeding, provided that (i) Indemnitee shall have the right to employ Indemnitee’s counsel in any such action suit or proceeding Claim at Indemnitee's ’s sole expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably the right to employ Indemnitee’s own counsel in connection with such proceeding, at the expense of the Company, if such counsel serves in a review, observer, advice and counseling capacity and does not otherwise materially control or participate in the defense of such Claim; and (iii) if the Company and Indemnitee have mutually concluded that there may be is a conflict of interest between the Company and Indemnitee them in the conduct of any such defense, (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then Indemnitee is entitled to retain its own counsel and the reasonable fees and expenses of Indemnitee's ’s counsel reasonably approved by the Company (such approval shall not be unreasonably withheld, delayed or conditioned) shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.Indemnification Agreement-Dx. Xxxxx 6.21.18 - 5 -

Selection of Counsel. In the event Upon notification of the Company shall be obligated under Section 2(a) hereof to pay of the expenses (including attorneys' fees) commencement of any action, suit Proceeding as to which indemnification will or proceeding against Indemniteecould be sought under this Agreement, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingProceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same actionProceeding; provided, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such action suit or proceeding Proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, defense or (C) the Company shall notnot within sixty (60) days, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsProceeding, then the fees and expenses Expenses of Indemnitee's counsel shall be at the expense of the Company. In the event separate counsel is retained by an Indemnitee pursuant to this Section 2(e), the Company shall cooperate with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding Proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion determination provided for in (ii) (B) or (Dii)(B) above.

Selection of Counsel. In the event the Company Indemnitors shall be obligated -------------------- under Section 2(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, Indemnitors, unless Indemnitee determines that a conflict of interest exists between the Company, if appropriateIndemnitee and Indemnitors with respect to a particular claim, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the CompanyIndemnitors, the Company Indemnitors will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, ; provided that (i) Indemnitee -------- shall have the right to employ his own separate counsel in any such action suit proceeding in addition to or proceeding in place of any counsel retained by Indemnitors on behalf of Indemnitee at Indemnitee's expense; , and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the CompanyIndemnitors, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company Indemnitors and Indemnitee in the conduct of any such defense, or (C) the Company Indemnitors shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveIndemnitors.

Selection of Counsel. In the event the Company shall -------------------- be obligated under Section 2(a) hereof to pay the expenses (including attorneys' fees) of any action, suit or proceeding against Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same action, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his counsel in any such action suit or proceeding at Indemnitee's expense; and (ii) if (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed counsel to assume the defense of such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsproceeding, then the fees and expenses of Indemnitee's counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to which the Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) above.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof hereunder to pay the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against IndemniteeClaim, the Company, if appropriate, Company shall be entitled to assume the defense of such action, suit or proceedingClaim, with counsel approved by the applicable Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to such Indemnitee of written notice of its election so to dodo so. After delivery of such notice, approval of such counsel by the Indemnitee and the retention of such counsel by the Company, the Company will not be liable to such Indemnitee under this Agreement for any fees of counsel subsequently incurred by such Indemnitee with respect to the same actionClaim; provided that, suit or proceeding, provided that (i) the Indemnitee shall have the right to employ such Indemnitee’s counsel in any such action suit or proceeding Claim at the Indemnitee's expense; ’s expense and (ii) if (A) the employment of counsel by the Indemnitee has been previously authorized by the Company, (B) such Indemnitee shall have reasonably concluded that there may be is an actual conflict of interest, or a potential conflict of interest that is material and reasonably likely, between the Company and such Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of the Indemnitee's ’s counsel shall be at the expense of the Company. The As long as the Company has otherwise complied with the terms hereof, the Company shall not be entitled have the right to assume conduct such defense as it sees fit in its sole discretion, including the defense of right to settle any claim, action, suit action or proceeding brought by or on behalf against any Indemnitee without the consent of such Indemnitee, provided such settlement includes a full release of the Company against Indemnitee by the claimant from all liabilities or as to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) abovepotential liabilities under such claim.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof hereunder to pay provide indemnification for or make any Expense Advances with respect to the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against IndemniteeClaim, the Company, if appropriate, shall be entitled to assume the defense of such action, suit or proceeding, Claim with counsel approved by Indemnitee, Indemnitee (which approval shall not be unreasonably withheld) upon the delivery to Indemnitee of written notice of its the Company's election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses of separate counsel subsequently incurred employed by or on behalf of Indemnitee with respect to the same actionClaim; provided that, suit or proceeding, provided that (i) Indemnitee shall have the right to employ Indemnitee's separate counsel in any such action suit or proceeding Claim at Indemnitee's expense; expense and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's separate counsel shall be at the expense of the Expenses for which Indemnitee may receive indemnification or Expense Advances hereunder. Settlement by Company. The Company shall be permitted to settle any action except that it shall not be entitled to assume the defense of settle any claim, action, suit action or proceeding brought by claim in any manner which would impose any penalty or limitation on behalf of Indemnitee without Indemnitee's written consent. Neither the Company against nor Indemnitee or as will unreasonably withhold its consent to which Indemnitee shall have made the conclusion provided for in (ii) (B) or (D) aboveany proposed settlement.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof -------------------- hereunder to pay provide indemnification for or make any Expense Advances with respect to the expenses (including attorneys' fees) Expenses of any action, suit or proceeding against IndemniteeClaim, the Company, if a majority of the Company's Board of Directors or a Reviewing Party reasonably determines that such action is appropriate, shall be entitled to assume the defense of such action, suit or proceeding, Claim with counsel approved by Indemnitee, Indemnitee (which approval shall not be unreasonably withheld) upon the delivery to Indemnitee of written notice of its the Company's election so to dodo so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses of separate counsel subsequently incurred employed by or on behalf of Indemnitee with respect to the same actionClaim; provided that, suit or proceeding, provided that (i) Indemnitee shall have the right to employ Indemnitee's separate counsel in any such action suit or proceeding Claim at Indemnitee's expense; expense and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not, in fact, have employed not continue to retain such counsel to assume the defense of defend such action, suit or proceeding or (D) the Company is not financially or legally able to perform its indemnification obligationsClaim, then the fees and expenses of Indemnitee's separate counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any claim, action, suit or proceeding brought by or on behalf of the Company against Indemnitee or as to Expenses for which Indemnitee shall have made receive indemnification or Expense Advances hereunder to the conclusion provided for in (ii) (B) extent that Indemnitee is otherwise entitled to such indemnification or (D) aboveExpense Advance pursuant to this Agreement.