Common use of Selection of Counsel Clause in Contracts

Selection of Counsel. Upon notification of the Company of the commencement of any Proceeding as to which indemnification will or could be sought under this Agreement, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election 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 Proceeding; provided, that (i) Indemnitee shall have the right to employ his or her counsel in any such 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 within sixty (60) days, in fact, have employed counsel to assume the defense of such Proceeding, then the 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated hereunder to pay the commencement Expenses of any Proceeding as to which indemnification will action, suit, proceeding, inquiry or could be sought under this Agreementinvestigation, the Company Company, except as otherwise provided below, shall be entitled to assume the defense of such Proceedingaction, suit, proceeding, inquiry or investigation 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 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 Proceeding; providedaction, that suit, proceeding, inquiry or investigation, other than as provided 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 his or her Indemnitee's own counsel in any such Proceeding action, suit, proceeding, inquiry or 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 defense, or (Ciii) the Company shall not within sixty (60) days, in fact, fact have employed or retained or shall not in fact continue to employ or retain counsel to assume the defense of such Proceedingaction, then suit, proceeding, inquiry or investigation, in each of which cases the Expenses fees and expenses of the 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 or control the defense of any Proceeding action, suit, proceeding, inquiry or investigation brought by or on behalf of the Company or as to which the Indemnitee shall have has made the determination provided for in (ii)(B) aboveconclusion that there may be a conflict of interest between the Company and the Indemnitee.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 1(a) or (b) hereof to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst Indemnitee, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval Indemnitee (who shall not be unreasonably withheldwithhold 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 Proceeding; provided, that provided that, (i) Indemnitee shall have the right to employ his or her Indemnitee’s counsel in any such Proceeding 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 defense 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 (CD) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such ProceedingProceeding within a reasonable time frame, then the Expenses reasonable fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of by the Indemnitee to the Company of the commencement of any Proceeding as to which indemnification will or could be sought under this Agreement, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election 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 Proceeding; provided, that (i) Indemnitee shall have the right to employ his or her counsel in any such 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 within sixty (60) daysdays 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 Proceeding, then the 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(e4(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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of If the Company of the commencement of shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee with respect to any Proceeding as to which indemnification will or could be sought under this AgreementLosses, the Company shall be entitled to assume the defense of such 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, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to doconditioned 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 Proceedingdefense of such Claims; provided, that (i) Indemnitee shall have the right to employ his or her counsel in connection with any such 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 defense, or (C) the Company shall not within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 2(a) hereof to pay the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company Company, if appropriate, shall be entitled to assume the defense of such 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. 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 Proceeding; providedproceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such 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 not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingproceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated hereunder to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this AgreementClaim, the Company shall be entitled to assume the defense of such 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 ProceedingClaim; providedprovided that, that (i) the Indemnitee shall have the right to employ his or her such Indemnitee’s legal counsel in any such Proceeding 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 participate 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 defense, or (C) the Company shall not within sixty (60) days, in fact, have employed fact continue to retain such legal counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and expenses of the Indemnitee’s legal 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of If the Company of the commencement of shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee with respect to any Proceeding as to which indemnification will or could be sought under this AgreementLosses, the Company shall be entitled to assume the defense of such Proceedingany related Claims, with counsel approved selected by the Company; provided, that such counsel shall be subject to the prior written approval of Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to doconditioned 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 Proceedingdefense of such Claims; provided, that (i) Indemnitee shall have the right to employ his or her counsel in connection with any such 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 defense, or (C) the Company shall not within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the Company of event the commencement Indemnifying Parties shall be obligated under Section 7 hereof to pay the Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst Indemnitee, the Company Indemnifying Parties, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withhelddelayed, 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 Proceeding; provided, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding at Indemnitee’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 or (C) the Company Indemnifying Parties shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceeding, then the fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveIndemnifying Parties.

Selection of Counsel. Upon notification of In the Company of event Indemnitors shall be obligated under Section 2(a) hereof to pay the commencement expenses of any Proceeding as proceeding against Indemnitee, Indemnitors, unless Indemnitee determines that a conflict of interest exists between the Indemnitee and Indemnitors with respect to which indemnification will or could be sought under this Agreementa particular claim, the Company shall be entitled to assume the defense of such 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 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 Proceeding; providedproceeding, provided that (i) Indemnitee shall have the right to employ his or her own separate counsel in any such Proceeding proceeding in addition to or in place of any counsel retained by Indemnitors on behalf of Indemnitee at Indemnitee’s '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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingproceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveIndemnitors.

Selection of Counsel. Upon notification In the event CACI shall be obligated under Section 4(a) of this Agreement to pay the Company of the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementinvolving the Indemnified Party, the Company CACI shall be entitled to participate in such Proceeding and, to the extent it shall wish, to assume the defense of such Proceeding, with counsel chosen by CACI and approved by Indemniteethe Indemnified Party, which approval shall not be unreasonably withheld, upon 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 Proceeding; provided, that except 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, 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 his or her counsel in any such 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 defense 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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceeding, then . The Indemnified Party shall have the Expenses of Indemnitee’s right to employ his own counsel shall be in any such Proceeding 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveIndemnified Party’s expense.

Selection of Counsel. Upon notification of If the Company of the commencement of shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee with respect to any Proceeding as to which indemnification will or could be sought under this AgreementLosses, the Company shall be entitled to assume the defense of such Proceedingany related Claims, with counsel approved selected by the Company; provided that such counsel shall be subject to the prior written approval of Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to doconditioned 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 Proceedingdefense of such Claims; provided, provided that (i) Indemnitee shall have the right to employ his or her counsel in connection with any such 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 defense, or (C) the Company shall not within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of is obligated hereunder to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this AgreementClaim, the Company shall be entitled to participate in the proceeding and assume the control of the defense of such ProceedingClaim, with counsel reasonably approved by Indemnitee, which Indemnitee (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 ProceedingClaim; providedprovided that, that (i) Indemnitee shall have the right to employ his or her Indemnitee’s counsel in any such Proceeding Claim at Indemnitee’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 or (C) the Company shall not within sixty (60) days, in fact, have employed counsel to assume the defense of such ProceedingClaim, then Indemnitee is entitled to retain its own counsel and the Expenses reasonable fees and expenses of Indemnitee’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. 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 jointIndemnification Agreement - Molina - 5 -defense agreements or confidentiality agreements, as appropriate. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 1(a) or (b) hereof to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst Indemnitee, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval Indemnitee (who shall not be unreasonably withheldwithhold 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 Proceeding; provided, that provided that, (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding 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 defense 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 (CD) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such ProceedingProceeding within a reasonable time frame, then the Expenses reasonable fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of If the Company of the commencement of shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee with respect to any Proceeding as to which indemnification will or could be sought under this AgreementLosses, the Company shall be entitled to assume the defense of such Proceedingany related Claims, with counsel approved selected by the Company and reasonably acceptable to Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to doconditioned 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 Proceedingdefense of such Claims; provided, that however, that: (i) Indemnitee shall have the right to employ his or her counsel in connection with any such Proceeding Claim at Indemnitee’s expense; 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 or (C) the Company shall not within sixty (60) days, in fact, have employed has ceased its retention of such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and 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 entitled, without the consent of Indemnitee, to assume 4894-3716-4339v.1 the defense of any Proceeding Claim brought by or on behalf in the right of the Company or as to which counsel for the Company or counsel for the Indemnitee shall have reasonably made the determination conclusion provided for in clause (ii)(BB) abovein the immediately preceding sentence.

Selection of Counsel. Upon notification of If the Company of the commencement of shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee with respect to any Proceeding as to which indemnification will or could be sought under this AgreementLosses, the Company shall be entitled to assume the defense of such Proceedingany related Claims, with counsel approved selected by the Company and reasonably acceptable to Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to doconditioned 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 Proceedingdefense of such Claims; provided, that however, that: (i) Indemnitee shall have the right to employ his or her counsel in connection with any such Proceeding Claim at Indemnitee’s expense; 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 or (C) the Company shall not within sixty (60) days, in fact, have employed has ceased its retention of such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and 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 entitled, without the consent of Indemnitee, to assume the defense of any Proceeding Claim brought by or on behalf in the right of the Company or as to which counsel for the Company or counsel for the Indemnitee shall have reasonably made the determination conclusion provided for in clause (ii)(BB) abovein the immediately preceding sentence.

Selection of Counsel. Upon notification of In the Company of event Double-Take shall be obligated hereunder to provide indemnification for or make any Expense Advances with respect to the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this AgreementClaim, the Company Double-Take, if appropriate, shall be entitled to assume the defense of such 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 ProceedingClaim; provided, that that, (i) Indemnitee Indemnified Person shall have the right to employ his or her Indemnified Person’s separate counsel in any such Proceeding Claim at IndemniteeIndemnified Person’s expense; 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 defense, or (C) the Company Double-Take shall not within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and expenses of IndemniteeIndemnified Person’s separate 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 Expenses for which Indemnified Person may receive indemnification or confidentiality agreements, as appropriate. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveExpense Advances hereunder.

Selection of Counsel. Upon notification of In the Company of event Indemnitors shall be obligated -------------------- under Section 2(a) hereof to pay the commencement expenses of any Proceeding as proceeding against Indemnitee, Indemnitors, unless Indemnitee determines that a conflict of interest exists between the Indemnitee and Indemnitors with respect to which indemnification will or could be sought under this Agreementa particular claim, the Company shall be entitled to assume the defense of such 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 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 Proceedingproceeding; provided, provided that (i) Indemnitee -------- shall have the right to employ his or her own separate counsel in any such Proceeding proceeding in addition to or in place of any counsel retained by Indemnitors on behalf of Indemnitee at Indemnitee’s '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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingproceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveIndemnitors.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated hereunder to provide indemnification for or make any Expense Advances with respect to the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this AgreementClaim, the Company Company, if appropriate, shall be entitled to assume the defense of such Proceeding, Proceeding or Claim with counsel approved by Indemnitee, Indemnitee (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 ProceedingProceeding or Claim; provided, however, that (i) Indemnitee shall have the right to employ his or her Indemnitee’s separate counsel in any such Proceeding or 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 (based on legal advice) 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 within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and expenses of Indemnitee’s separate 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 Proceeding brought by or on behalf of the Company or as to Expenses for which Indemnitee shall have made the determination provided for in (ii)(B) abovemay receive indemnification or Expense Advances hereunder.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 2(b) hereof to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company, unless 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 Proceedingproceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheldwithheld 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 Proceeding; providedproceeding, provided that (i) Indemnitee shall have the right to employ his or her own separate counsel in any such Proceeding proceeding in addition to or in place of any counsel retained by the Company on behalf of Indemnitee 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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingproceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification In the event the Company shall be obligated -------------------- hereunder to provide indemnification for or make any Expense Advances with respect to the Expenses of any Claim, the Company, if a majority of the Company Company's Board of the commencement of any Proceeding as to which indemnification will Directors or could be sought under this Agreementa Reviewing Party reasonably determines that such action is appropriate, the Company shall be entitled to assume the defense of such 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 ProceedingClaim; providedprovided that, that (i) Indemnitee shall have the right to employ his or her Indemnitee's separate counsel in any such 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 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 within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and expenses of Indemnitee’s 's separate counsel shall be at Expenses for which Indemnitee shall receive indemnification or Expense Advances hereunder to the expense of the Company. In the event separate counsel extent that Indemnitee is retained by an Indemnitee otherwise entitled to such indemnification or Expense Advance 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveAgreement.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated hereunder to provide indemnification for or make any Expense Advances with respect to the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this AgreementClaim, the Company Company, if appropriate, shall be entitled to assume the defense of such 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 ProceedingClaim; providedprovided that, that (i) Indemnitee shall have the right to employ his or her Indemnitee's separate counsel in any such 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 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 within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and expenses of Indemnitee’s 's separate counsel shall be at the expense of the Expenses for which Indemnitee may receive indemnification or Expense Advances hereunder. Settlement by 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 be permitted to settle any action except that it shall not be entitled to assume the defense of settle any Proceeding brought by action or claim in any manner which would impose any penalty or limitation on behalf of Indemnitee without Indemnitee's written consent. Neither the Company or as nor Indemnitee will unreasonably withhold its consent to which Indemnitee shall have made the determination provided for in (ii)(B) aboveany proposed settlement.

Selection of Counsel. Upon notification of If the Company of the commencement of shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee with respect to any Proceeding as to which indemnification will or could be sought under this AgreementLosses, the Company shall be entitled to assume the defense of any related Claims, with counsel selected by the Company; provided that following a Change in Control, if any Former Directors or Officers are seeking indemnification in connection with any such Proceeding, with such counsel approved by Indemniteeshall be subject to the prior written approval of a majority of such Former Directors or Officers who are seeking indemnification, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to doconditioned 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 Proceedingdefense of such Claims; provided, provided that (i) Indemnitee shall have the right to employ his or her counsel in connection with any such 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 defense, or (C) the Company shall not within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of the Company of the commencement of With respect to any Proceeding litigation or other legal action relating to a Claim as to which indemnification will or could be sought under Indemnitee notifies the Company (for purposes of this AgreementSection 6, a "Proceeding"), the Company shall 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 of such Proceeding, thereof with counsel selected by the Company and approved by Indemnitee, which approval shall not be unreasonably withheld, upon . After notice from the delivery Company to Indemnitee of written notice of its election so to do. After delivery assume the defense 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 Proceeding; provided, that (i) defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ his or her own counsel in any such 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 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 defense the 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 within sixty (60) days, in fact, fact have employed counsel to assume the defense of such Proceeding, then in each of which case all expenses of the Expenses Proceeding shall be borne by the Company, and Indemnitee's counsel shall have been approved by the Company (which approval may not be unreasonably withheld) and any carrier of Indemnitee’s an applicable insurance policy if required under the 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 at selected promptly following the expense of the Company. In the event separate counsel is retained by an notice from 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 appropriateIndemnitee's belief that a conflict of interest may exist. The Company company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(Bii) aboveabove shall have been made. Nothing herein shall limit the right of Indemnitee to employ counsel at Indemnitee's sole expense.

Selection of Counsel. Upon notification of If the Company of the commencement of shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee with respect to any Proceeding as to which indemnification will or could be sought under this AgreementLosses, the Company shall be entitled to assume the defense of any related Claims, with counsel selected by the Company; provided that following a Change in Control, if any Former Directors or Officers are seeking indemnification in connection with any such Proceeding, with such counsel approved by Indemniteeshall be subject to the prior written approval of a majority of such Former Directors or Officers who are seeking indemnification, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to doconditioned 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 Proceedingdefense of such Claims; provided, that provided that: (i) Indemnitee shall have the right to employ his or her counsel in connection with any such Proceeding Claim at Indemnitee’s expense; 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 or (C) the Company shall not within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of is obligated under Section 7 hereof to pay, and pays the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst Indemnitee, the Company Company, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election 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 Proceeding; provided, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such 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 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 within sixty (60) daysnot, in fact, have promptly employed counsel approved by the Indemnitee to assume the defense of such Proceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 2 hereof to pay the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company Trust shall be entitled to assume the defense of such Proceedingproceeding, with counsel approved by Indemnitee, which approval Indemnitee (who shall not be unreasonably withheldwithhold 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 Proceeding; providedproceeding, that provided that, (i) Indemnitee shall have the right to employ his or her Indemnitee’s counsel in any such Proceeding proceeding at Indemnitee’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 defense or 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 not within sixty have notified the Trust in writing thereof, or (60D) daysthe Trust shall not, in fact, have employed counsel to assume the defense of such Proceeding, then the 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 proceeding within a 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) abovetime frame.

Selection of Counsel. Upon notification of With respect to any Proceeding as to which Indemnitee notifies the Company of the commencement of any Proceeding as to which indemnification will or could be sought under this Agreementthereof, the Company shall 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 any 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 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 Proceeding; provided, that (i) defense of such Proceeding other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ his or her legal counsel in any such 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 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 defense the 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 within sixty (60) days, in fact, fact have employed counsel to assume the defense of such Proceeding, then the in each of which cases all Expenses of Indemnitee’s counsel the Proceeding shall be at the expense of borne by 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 Proceeding brought by or on behalf of the Company Company, or as to which Indemnitee shall have made the determination provided for in (ii)(Bii) above or under the circumstances provided for in (iii) and (iv) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated -------------------- under Section 1(b) or (c) hereof to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst Indemnitee, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval Indemnitee (who shall not be unreasonably withheldwithhold 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 Proceeding; provided, that provided that, (i) Indemnitee ------------- shall have the right to employ his or her Indemnitee's counsel in any such Proceeding 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 defense 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 (CD) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such ProceedingProceeding within a reasonable time frame, then the Expenses reasonable fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated to pay the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company shall be entitled to assume the defense of such 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 withheldwithheld 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 Proceedingproceeding; provided, that (i) Indemnitee shall have the right to employ his or her counsel of Indemnitee's choice in any such Proceeding 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 defense, or (C) the Company shall not within sixty (60) days, in fact, fact have employed counsel to assume the defense of such Proceeding, then the Expenses proceeding within thirty (30) days of Indemnitee’s counsel shall be at the expense its notice 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 intention to assume the defense of the proceeding, or such shorter period as shall be necessary to avoid adversely affecting the defense of Indemnitee, then, in any Proceeding brought by or on behalf of the Company or as to which Indemnitee foregoing cases, the fees and expenses of Indemnitee's counsel shall have made be paid by the determination provided for in (ii)(B) aboveCompany.

Selection of Counsel. Upon notification of In the event that the Company of shall be obligated under this Agreement to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst the Indemnitee, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval the Indemnitee (who shall not be unreasonably withheldwithhold 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 Proceeding; provided, that (i) the Indemnitee shall have the right to employ his or her own counsel in any such Proceeding at the Indemnitee’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 defense or 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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such ProceedingProceeding within a reasonable time frame, then the Expenses reasonable fees and expenses of the 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification In the event VPUR shall be obligated under Section 0 of this Agreement to pay the Company of the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementinvolving the Indemnified Party, the Company VPUR shall be entitled to participate in such Proceeding and, to the extent it shall wish, to assume the defense of such Proceeding, with counsel chosen by VPUR and approved by Indemniteethe Indemnified Party, which approval shall not be unreasonably withheld, upon 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 Proceeding; provided, that except 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, 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 his or her counsel in any such 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 defense 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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceeding, then . The Indemnified Party shall have the Expenses of Indemnitee’s right to employ his own counsel shall be in any such Proceeding 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveIndemnified Party's expense.

Selection of Counsel. Upon notification of In the Company of event the commencement Indemnifying Parties shall be obligated under Section 7 hereof to pay the Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst Indemnitee, the Company Indemnifying Parties, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withhelddelayed, 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 Proceeding; provided, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding at Indemnitee’s '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 or (C) the Company Indemnifying Parties shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceeding, then the fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveIndemnifying Parties.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 3(a) hereof to pay the commencement expenses of any Proceeding as to which indemnification will action, suit or could be sought under this Agreementproceeding against Indemnitee, the Company Company, if appropriate, shall be entitled to assume the defense of such Proceedingaction, suit or proceeding, with counsel approved by Indemnitee, 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 Proceeding; providedaction, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding action, suit or proceeding at Indemnitee’s '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 or (C) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingaction, suit or proceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated -------------------- under Section 1(b) or (c) hereof to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst Indemnitee, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval Indemnitee (who shall not be unreasonably withheldwithhold 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 Proceeding; provided, that provided that, (i) Indemnitee -------- ---- shall have the right to employ his or her Indemnitee's counsel in any such Proceeding 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 defense 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 (CD) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such ProceedingProceeding within a reasonable time frame, then the Expenses reasonable fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 3(a) to advance the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst Indemnitee, the Company Company, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election 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 Proceeding; provided, that (i) except as provided below. The Indemnitee shall have the right to employ his or her own counsel in any such Proceeding 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 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 or defense, (Ciii) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceeding, then or (iv) the Expenses 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, in each of which cases the fees and 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 Proceeding brought by or on behalf of the Company Company, or as to which Indemnitee shall have made the determination provided for in (ii)(Bii) above or under the circumstances provided for in (iii) 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. Upon notification of In connection with the Company of the commencement defense of any Proceeding as to which indemnification will or could be sought under this Agreementagainst an Indemnitee, the Company Indemnitor shall be entitled to assume the defense of such ProceedingProceeding (other than a Proceeding involving criminal proceedings, in 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, which approval shall such consent not be 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 Proceeding; provided, provided that (ix) the Indemnitee shall have the right to employ his or her separate counsel in any such Proceeding at the Indemnitee’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 defense, or (C) the Company shall not within sixty (60) daysIndemnitor has not, in fact, have employed counsel to assume the defense of such Proceeding, then the Expenses reasonable fees and expenses of the 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveIndemnitor.

Selection of Counsel. Upon notification of If the Company of shall be obligated under Section 2(a) hereof to pay the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company Company, if appropriate, shall be entitled to assume the defense of such Proceedingproceeding, 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 Proceeding; providedproceeding, provided that (i) Indemnitee shall have the right to employ his or her Indemnitee’s counsel in any such Proceeding proceeding at Indemnitee's expense; (ii) Indemnitee shall have the right to employ Indemnitee’s expenseown 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 defense, or (C) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingproceeding, then the Expenses fees and 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 liable to assume the defense indemnify Indemnitee or advance expenses to Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding brought proceeding effected by Indemnitee without the Company’s written consent, which consent shall not be unreasonably withheld, unless Indemnitee receives court approval for such settlement or on behalf of other disposition where the Company 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 as to which limitation on Indemnitee without Indemnitee’s written consent. Neither the Company nor Indemnitee shall have made the determination provided for in (ii)(B) aboveunreasonably withhold its consent to any proposed settlement.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated hereunder to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this AgreementClaim, the Company shall be entitled to assume the defense of such 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 ProceedingClaim; providedprovided that, that (i) the Indemnitee shall have the right to employ his or her such Indemnitee’s counsel in any such Proceeding Claim at the Indemnitee’s expense; 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 defense, or (C) the Company shall not within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and expenses of the Indemnitee’s counsel shall be at the expense of the Company. In As long as the event separate counsel is retained by an Indemnitee pursuant to this Section 2(e)Company has otherwise complied with the terms hereof, the Company shall cooperate with have the right to conduct such defense as it sees fit in its sole discretion, including the right to settle any claim, action or proceeding against any Indemnitee with respect to without the defense consent of such Indemnitee, provided such settlement includes a full release of the Proceeding, including making documents, witnesses and other reasonable information related to Indemnitee by the defense available to Indemnitee and claimant from all liabilities or potential liabilities under 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveclaim.

Selection of Counsel. Upon notification of In the event the Company of the commencement of may be obligated to make any Proceeding as to which indemnification will or could be sought under this Agreementindemnity in connection with a Proceeding, the Company shall be entitled to assume the defense of such 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 Proceeding; provided. Notwithstanding the Company’s assumption of the defense of any such Proceeding, 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 his or her counsel in any such 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, (iv) the Company is not financially or legally able to perform its indemnification obligations or (Cv) the Company shall not within sixty (60) dayshave retained, in factor shall not continue to retain, have employed such counsel to assume the defense of defend such Proceeding. Regardless of any provision in this Agreement, then Indemnitee shall have the Expenses of right to employ counsel in any Proceeding at 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 appropriatepersonal expense. The Company shall not be entitled entitled, without the consent of Indemnitee, to assume the defense of any Proceeding claim brought by or on behalf in the right of the Company. Indemnitee agrees to consult with the Company and to consider in good faith the advisability and appropriateness of joint representation in the event that either the Company or as other indemnitees in addition to which Indemnitee shall have made the determination provided for require representation in (ii)(B) aboveconnection with any Proceeding.

Selection of Counsel. Upon notification of the Company of the commencement of any Proceeding as to which indemnification will or could be sought under this Agreement, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election 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 Proceeding; provided, that (i) Indemnitee shall have the right to employ his or her counsel in any such 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 within sixty (60) days, in fact, have employed counsel to assume the defense of such Proceeding, then the 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 8 hereof to pay the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementagainst Indemnitee, the Company Company, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election 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 Proceeding; provided, provided that (ia) Indemnitee shall have the right to employ his or her counsel in any such Proceeding at Indemnitee’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 (Cor any other person or persons included in a joint defense) under the applicable standards of professional conduct, or (3) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have reasonably made the determination conclusion provided for in (ii)(B2) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated to pay the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company shall be entitled to assume the defense of such 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 withheldwithheld 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 Proceedingproceeding; provided, that (i) Indemnitee shall have the right to employ his or her counsel of Indemnitee’s choice in any such Proceeding 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 defense, or (C) the Company shall not within sixty (60) days, in fact, fact have employed counsel to assume the defense of such Proceedingproceeding within thirty (30) days of its notice of intention to assume the defense of the proceeding, then or such shorter period as shall be necessary to avoid adversely affecting the Expenses defense of Indemnitee, 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. 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated -------------------- under Section 2(b) hereof to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company, unless 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 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 be not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Proceeding; providedproceeding, provided that (i) Indemnitee shall have the right to employ his or her own separate counsel in any such Proceeding proceeding in addition to or in place of any counsel retained by the Company on behalf of Indemnitee 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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingproceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of If the Company shall be obligated under Section 1(a) or (b) hereof to pay Expenses of the commencement of any Proceeding as to which indemnification will or could be sought under this AgreementIndemnitee, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval Indemnitee (who shall not be unreasonably withheldwithhold 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 Proceeding; provided, that provided that, (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding 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 defense 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 (CD) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such ProceedingProceeding within a reasonable time frame, then the Expenses reasonable fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of If the Company of the commencement of shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee with respect to any Proceeding as to which indemnification will or could be sought under this AgreementLosses, the Company shall be entitled to assume the defense of any related Claims, with counsel selected by the Company; provided that following a Change in Control, if any Former Directors or Officers are seeking indemnification in connection with any such Proceeding, with such counsel approved by Indemniteeshall be subject to the prior written approval of a majority of such Former Directors or Officers who are seeking indemnification, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to doconditioned 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 Proceedingdefense of such Claims; provided, that however, that: (i) Indemnitee shall have the right to employ his or her counsel in connection with any such Proceeding Claim at Indemnitee’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 defense; or (C) the Company shall not within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated -------------------- under Section 1(a) or (b) hereof to pay the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company shall be entitled to assume the defense of such Proceedingproceeding, with counsel approved by Indemnitee, Indemnitee (which approval shall not be unreasonably withheldwithhold 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 Proceeding; proceeding, provided, that that, (i) Indemnitee shall have the right to employ his or her counsel in any -------- ---- such Proceeding 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 defense 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 (CD) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingproceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 3(a) hereof to pay the commencement expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company shall be entitled to assume the defense of such 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 Proceeding; providedproceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such 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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingproceeding, then the Expenses fees and expenses of Indemnitee’s counsel shall be at the expense of the Company. In As long as the event separate counsel is retained by an Indemnitee pursuant to this Section 2(e)Company has otherwise complied with the terms hereof, the Company shall cooperate with Indemnitee with respect have the right to the conduct such defense of the Proceedingas it sees fit in its sole discretion, including making documentsthe right to settle any action, witnesses and other reasonable information related to suit or proceeding against Indemnitee without the defense available to consent of Indemnitee, provided such settlement includes a full release of Indemnitee and by the claimant from all liabilities or potential liabilities under such separate counsel pursuant to joint-defense agreements action, suit or confidentiality agreements, as appropriate. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveproceeding.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 2(a) hereof to pay the commencement of Indemnitee’s expenses in connection with any Proceeding as to which indemnification will or could be sought under this AgreementProceeding, the Company Company, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election 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 Proceeding; provided, provided that (i) Indemnitee shall have the right to employ his or her Indemnitee’s counsel in any such Proceeding at Indemnitee’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 defense interest, or (Ciii) the Company shall not within sixty (60) daysnot, in fact, have employed counsel reasonably satisfactory to assume Indemnitee within a reasonable time after notice of the defense institution of such Proceeding, then Indemnitee shall have the Expenses of Indemnitee’s right to employ 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveaccordance herewith.

Selection of Counsel. Upon notification of the Company of the commencement of any Proceeding action, suit or proceeding as to which indemnification will or could be sought under this Agreement, the Company or an Affiliated Entity shall be entitled to assume the defense of such Proceedingaction, 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 Proceedingaction, suit or proceeding; provided, that (ia) Indemnitee shall have the right to employ his or her own counsel in any such Proceeding action, suit or proceeding at Indemnitee’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 or (Ciii) the Company or an Affiliated Entity shall not within sixty (60) days, in fact, have employed counsel to assume the defense of such Proceedingaction, suit or proceeding, then the 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)5, the Company shall cooperate with Indemnitee with respect to the defense of the Proceedingaction, 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. The Neither the Company nor any Affiliated Entity shall not be entitled to assume the defense of any Proceeding action, suit or proceeding brought by or on behalf of the Company or an Affiliated Entity or as to which Indemnitee and the Company shall have made the determination provided for in (ii)(Bb)(ii) above.

Selection of Counsel. Upon notification of If the Company of the commencement of shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee with respect to any Proceeding as to which indemnification will or could be sought under this AgreementLosses, the Company shall be entitled to assume the defense of any related Claims, with counsel selected by the Company, PROVIDED THAT following a Change in Control, if any Former Directors are seeking indemnification in connection with any such Proceeding, with such counsel approved by Indemniteeshall be subject to the prior written approval of a majority of such Former Directors who are seeking indemnification, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election so to dowithheld 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 Proceedingdefense of such Claims; provided, that PROVIDED THAT: (i) Indemnitee shall have the right to employ his or her counsel in connection with any such Proceeding Claim at Indemnitee’s '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 defense, or (C) the Company shall not within sixty (60) days, in fact, have employed continue to retain such counsel to assume the defense of defend such ProceedingClaim, then the Expenses fees and expenses of Indemnitee’s 's counsel shall be at the expense of the Company. In The Company may not settle or compromise any claim or consent to the event separate counsel is retained by an Indemnitee pursuant to this Section 2(e), the Company shall cooperate with Indemnitee entry of any judgment with respect to which indemnification is being sought hereunder without the defense prior written consent of the Proceeding, including making documents, witnesses and other reasonable information related Indemnitee (such consent not 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveunreasonably withheld).

Selection of Counsel. Upon notification of In the Company of event the commencement Trust shall be obligated under Section 2(b) hereof to pay the Expenses of any Proceeding as to which indemnification will or could be sought under this Agreementproceeding against Indemnitee, the Company Trust, unless 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 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 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 Proceeding; providedproceeding, provided that (i) Indemnitee shall have the right to employ his or her own separate counsel in any such Proceeding proceeding in addition to or in place of any counsel retained by the Trust on behalf of Indemnitee at Indemnitee’s '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 or (C) the Company Trust shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingproceeding, then the Expenses fees and 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveTrust.

Selection of Counsel. Upon notification of In the event the Company of is obligated hereunder to pay the commencement Expenses of any Proceeding as to which indemnification will or could be sought under this AgreementClaim, the Company shall be entitled to participate in the proceeding and assume the control of the defense of such ProceedingClaim, with counsel reasonably approved by Indemnitee, which Indemnitee (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 ProceedingClaim; providedprovided that, that (i) Indemnitee shall have the right to employ his or her Indemnitee’s counsel in any such Proceeding Claim at Indemnitee’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 or (C) the Company shall not within sixty (60) days, in fact, have employed counsel to assume the defense of such ProceedingClaim, then Indemnitee is entitled to retain its own counsel and the Expenses reasonable fees and expenses of Indemnitee’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. 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 jointIndemnification Agreement-defense agreements or confidentiality agreements, as appropriateDx. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.Xxxxx 6.21.18 - 5 -

Selection of Counsel. Upon notification of In the event the Company of the commencement of any Proceeding as to which indemnification will or could shall be sought -------------------- obligated under this AgreementARTICLE 3 to indemnify Indemnitee, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election 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 Proceeding; provided, provided that (i) Indemnitee shall have the right to employ his or her own counsel in any such 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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceeding, then the Expenses fees and expenses of Indemnitee’s 's counsel shall be at the expense of borne by 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) above.

Selection of Counsel. Upon notification of In the event the Company of shall -------------------- be obligated under Section 2(a) hereof to pay the commencement expenses (including attorneys' fees) of any Proceeding as to which indemnification will action, suit or could be sought under this Agreementproceeding against Indemnitee, the Company Company, if appropriate, shall be entitled to assume the defense of such Proceedingaction, 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 Proceeding; providedaction, suit or proceeding, provided that (i) Indemnitee shall have the right to employ his or her counsel in any such Proceeding 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 within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceedingaction, suit or proceeding, then the Expenses fees and 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 Proceeding 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 determination conclusion provided for in (ii)(Bii) (B) above.

Selection of Counsel. Upon notification of In the event the Company of shall be obligated under Section 3(a) to advance the commencement expenses of any Proceeding against Indemnitee, the Indemnitee shall have the right to control and defend such Proceeding in such manner as it may deem appropriate. Should Indemnitee decline to which indemnification will or could be sought under this Agreementcontrol and defend the Proceeding, the Company shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election 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 Proceeding; provided, that (i) except as provided below. The Indemnitee shall have the right to employ his or her own counsel in any such Proceeding proceeding 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 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 or (Ciii) the Company shall not within sixty (60) daysnot, in fact, have employed counsel to assume the defense of such Proceeding, then in each of which cases the Expenses fees and 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 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 Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii)(B) aboveIndemnitee’s prior written consent.