Common use of Conduct of Indemnification Actions Clause in Contracts

Conduct of Indemnification Actions. If any Action shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Action and to employ counsel reasonably satisfactory to such Indemnified Party in any such Action, or (3) the named parties to any such Action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Action effected without its written consent, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Action. Subject to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Action in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) not to be entitled to indemnification hereunder.

Conduct of Indemnification Actions. If any Action shall be brought or asserted against any Person entitled to indemnity hereunder (an “"Indemnified Party”"), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “"Indemnifying Party”") in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, ; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Action and to employ counsel reasonably satisfactory to such Indemnified Party in any such Action, ; or (3) the named parties to any such Action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the such Indemnified Party shall reasonably believe have been advised by counsel that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate such counsel shall be at the expense of the Indemnifying Party; provided, however, that in the event one or more Investors is a party to such Action, the Company shall only be required to pay the expenses of one law firm serving as counsel to said Investors). The Indemnifying Party shall not be liable for any settlement of any such Action effected without its written consent, which consent shall not be unreasonably withheld or delayedwithheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Action. Subject to the terms of this Agreement, all reasonable All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Action in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten (10) Trading Days of written notice thereof to the Indemnifying Party, provided Party (regardless of whether it is ultimately determined that the an Indemnified Party shall promptly reimburse is not entitled to indemnification hereunder; provided, that the Indemnifying Party for that portion of may require such Indemnified Party to undertake to reimburse all such fees and expenses applicable to such actions for which the extent it is finally judicially determined that such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) not to be entitled to indemnification hereunder).

Conduct of Indemnification Actions. If any Action shall be brought or asserted against any Person entitled to indemnity hereunder (an “"Indemnified Party”"), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “"Indemnifying Party”") in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, ; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Action and to employ counsel reasonably satisfactory to such Indemnified Party in any such Action, ; or (3) the named parties to any such Action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the such Indemnified Party shall reasonably believe have been advised by counsel that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate such counsel shall be at the expense of the Indemnifying Party; provided, however, that in the event one or more Holders is a party to such Action, the Company shall only be required to pay the expenses of one law firm serving as counsel to said Holders). The Indemnifying Party shall not be liable for any settlement of any such Action effected without its written consent, which consent shall not be unreasonably withheld or delayedwithheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Action. Subject to the terms of this Agreement, all reasonable All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Action in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days (10) business days of written notice thereof thereof, together with reasonable supporting documentation, to the Indemnifying Party, provided that the Party (regardless of whether it is uncertain whether an Indemnified Party shall promptly reimburse is actually entitled to indemnification hereunder; provided, that the Indemnifying Party for that portion of may require such Indemnified Party to undertake to reimburse all such fees and expenses applicable to such actions for which the extent it is finally judicially determined that such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) not to be entitled to indemnification hereunder).

Conduct of Indemnification Actions. If any Action shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, ; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Action and to employ counsel reasonably satisfactory to such Indemnified Party in any such Action, ; or (3) the named parties to any such Action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the such Indemnified Party shall reasonably believe have been advised by counsel that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate such counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Action effected without its written consent, which consent shall not be unreasonably withheld or delayedwithheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Action. Subject to the terms of this Agreement, all reasonable All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Action in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided Party (regardless of whether it is ultimately determined that the an Indemnified Party shall promptly reimburse is not entitled to indemnification hereunder; provided, that the Indemnifying Party for that portion of may require such Indemnified Party to undertake to reimburse all such fees and expenses applicable to such actions for which the extent it is finally judicially determined that such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) not to be entitled to indemnification hereunder).

Conduct of Indemnification Actions. If any Action shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, ; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Action and to employ counsel reasonably satisfactory to such Indemnified Party in any such Action, ; or (3) the named parties to any such Action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the such Indemnified Party shall reasonably believe have been advised by counsel that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate such counsel shall be at the expense of the Indemnifying Party; provided, however, that in the event one or more Investors is a party to such Action, the Company shall only be required to pay the expenses of one law firm serving as counsel to said Investors, unless and to the extent that such Investors have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Investors on a particular issue). The Indemnifying Party shall not be liable for any settlement of any such Action effected without its written consent, which consent shall not be unreasonably withheld or delayedwithheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Action. Subject to the terms of this Agreement, all reasonable All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Action in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided Party (regardless of whether it is ultimately determined that the an Indemnified Party shall promptly reimburse is not entitled to indemnification hereunder; provided, that the Indemnifying Party for that portion of may require such Indemnified Party to undertake to reimburse all such fees and expenses applicable to such actions for which the extent it is finally judicially determined that such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) not to be entitled to indemnification hereunder).

Conduct of Indemnification Actions. If any Action shall be brought or asserted against any (a) Any Person entitled to indemnity indemnification hereunder agrees to give prompt written notice to the indemnifying Person within 15 business days after the receipt by such indemnified Person of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof (an “Indemnified Party”), "Action") made in writing for which such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations may claim indemnification or liabilities contribution pursuant to this AgreementAgreement and, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Action and to participate unless in the defense thereof, but the fees and expenses reasonable judgment of such counsel shall be at indemnified Person a conflict of interest may exist between such indemnified Person and the expense of indemnifying Person with respect to such Indemnified Party or Parties unless: (1) Action, permit the Indemnifying Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly indemnifying Person to assume the defense of such Action and to employ with counsel reasonably satisfactory to such Indemnified Party indemnified Person; provided, however, that if the defendants in any Action include both the indemnified and indemnifying Persons and there is a conflict of interest which would prevent counsel for the indemnifying Person from also representing the indemnified Person, then the indemnified Person shall have the right to select separate counsel to participate in the defense of such Action on behalf of such indemnified Person. After notice from the indemnifying Person to such indemnified Person of its election so to assume the defense of an Action, the indemnifying Person shall not be liable to such indemnified Person pursuant to the provisions of Section 6.1 or 6.2 hereof for any legal fees or disbursements subsequently incurred by such indemnified Person in connection with the defense of such Action other than reasonable costs of investigation, unless (i) the indemnified Person shall have employed counsel in accordance with the proviso of the immediately preceding sentence, (ii) the indemnifying Person shall not have employed counsel reasonably satisfactory to the indemnified Person within a reasonable time after the notice of the commencement of the Action, or (3iii) the named parties to any such Action (including any impleaded parties) include both such Indemnified Party and indemnifying Person has expressly authorized the Indemnifying Party, and employment of counsel to for the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel indemnified Person at the expense of the Indemnifying Partyindemnifying Person. Notwithstanding the foregoing, however, it is understood and agreed that the Indemnifying Party shall not have indemnifying Person shall, in connection with any one Action or separate but substantially similar or related Actions in the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense same jurisdiction arising out of the Indemnifying Party). The Indemnifying Party shall not same general allegations or circumstances, be liable for any settlement of any such Action effected without its written consent, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Action. Subject to the terms of this Agreement, all reasonable fees and expenses disbursements of only one separate firm of attorneys (in addition to any local counsel) at any time for all indemnified Persons not having actual or potential differing interests with the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Action in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) not to be entitled to indemnification hereunderother parties among themselves.

Conduct of Indemnification Actions. If any Action shall be brought or asserted against any (a) Any Person entitled to indemnity indemnification hereunder agrees to give prompt written notice to the indemnifying Person after the receipt by such indemnified Person of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof (an “Indemnified Party”), "Action") made in writing for which such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations may claim indemnification or liabilities contribution pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Action Agreement and to participate in permit the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly indemnifying Person to assume the defense of such Action and to employ with counsel reasonably satisfactory to such Indemnified Party indemnified Person; provided, however, that, if the defendants in any such Action, or (3) the named parties to any such Action (including any impleaded parties) include both such Indemnified Party the indemnified and indemnifying Persons and one or more indemnified Persons reasonably shall have concluded that there may be defenses available to it that are different from or additional to those of the Indemnifying Party, and counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist indemnifying Person or if the same counsel were to represent such Indemnified Party and the Indemnifying Party indemnifying Person shall not within thirty (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense 30) days following receipt of the Indemnifying Partyindemnified Person's notice have employed counsel reasonably satisfactory to such indemnified Person, then the Indemnifying Party indemnified Person shall not have the right to select separate counsel to participate in the defense of such Action on behalf of such indemnified Person at the Company's sole cost and expense. After notice from the indemnifying Person to such indemnified Person of its election so to assume the defense thereof and of an Action, the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party indemnifying Person shall not be liable to such indemnified Person pursuant to the provisions of Section 6.1 or 6.2 hereof for any settlement of any legal fees or disbursements subsequently incurred by such Action effected without its written consent, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Action. Subject to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred indemnified Person in connection with investigating or preparing to defend the defense of such Action other than reasonable costs of investigation, unless (i) the indemnified Person shall have employed counsel in a manner accordance with the proviso of the immediately preceding sentence, (ii) the indemnifying Person shall not inconsistent with this Section) shall be paid have employed counsel reasonably satisfactory to the Indemnified Partyindemnified Person within a reasonable time after the notice of the commencement of the Action or (iii) the indemnifying Person has expressly authorized the employment of counsel for the indemnified Person at the cost and expense of the indemnifying Person. Notwithstanding the foregoing, as incurredhowever, within ten Trading Days of written notice thereof to the Indemnifying Party, provided parties hereto understand and agree that the Indemnified Party shall promptly reimburse indemnifying Person shall, in connection with any one Action or separate but substantially similar or related Actions in the Indemnifying Party same jurisdiction arising out of the same general allegations or circumstances, be liable for that portion of such the fees and expenses applicable disbursements of only one separate firm of attorneys (in addition to such actions any local counsel) at any time for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is all indemnified Persons not subject to appeal having actual or further review) not to be entitled to indemnification hereunderpotential differing interests with the other parties among themselves.

Conduct of Indemnification Actions. If any Action or investigation shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, provided that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this AgreementSection 6.5, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Action or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Action or investigation and to employ counsel reasonably satisfactory to such Indemnified Party in any such ActionAction or investigation, or (3) the named parties to any such Action or investigation (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Action or investigation effected without its written consent, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Action or investigation in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Action. Subject to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating Action or preparing to defend such Action in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) not to be entitled to indemnification hereunderinvestigation.

Conduct of Indemnification Actions. If any Action shall be brought or asserted against any Person entitled to indemnity indemnification hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity indemnification is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all reasonable fees and expenses incurred in connection with defense thereof; provided, that, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1i) the Indemnifying Party has agreed in writing to pay such fees and expenses, ; (2ii) the Indemnifying Party shall have failed promptly to assume the defense of such Action and to employ counsel reasonably satisfactory to such Indemnified Party in any such Action, ; or (3iii) the named parties to any such Action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the such Indemnified Party shall reasonably believe have been advised by counsel that a material conflict of interest is likely to exist exists if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate such counsel shall be at the expense of the Indemnifying Party); provided, that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any such Action effected without its written consent, which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Action in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Action. Subject to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable attorneys’ fees and expenses to the extent incurred in connection with investigating or preparing to defend such Action in a manner not inconsistent with this SectionSection 6(c)) shall be paid to the Indemnified Party, as incurred, within ten 20 Trading Days of written notice thereof to the Indemnifying Party; provided, provided that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is finally judicially determined by a court of competent jurisdiction (which determination is to not subject to appeal or further review) not to be entitled to indemnification hereunder.