PURSUANT TO THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FAILURE TO SO NOTIFY THE
INDEMNIFYING PERSON SHALL NOT RELIEVE THE INDEMNIFYING PERSON OF ANY LIABILITY
THAT IT MAY HAVE TO THE INDEMNIFIED PERSON HEREUNDER (EXCEPT TO THE EXTENT THAT
THE INDEMNIFYING PERSON FORFEITS SUBSTANTIVE RIGHTS OR DEFENSES BY REASON
20
OF SUCH FAILURE).
IF NOTICE OF COMMENCEMENT OF ANY SUCH ACTION IS GIVEN TO THE
INDEMNIFYING PERSON AS ABOVE PROVIDED, THE INDEMNIFYING PERSON SHALL BE ENTITLED
TO PARTICIPATE IN AND, TO THE EXTENT IT MAY WISH, JOINTLY WITH ANY OTHER
INDEMNIFYING PERSON SIMILARLY NOTIFIED, TO ASSUME THE DEFENSE OF SUCH ACTION AT
ITS OWN EXPENSE, WITH COUNSEL CHOSEN BY IT AND REASONABLY SATISFACTORY TO SUCH
INDEMNIFIED PERSON.
THE INDEMNIFIED PERSON SHALL HAVE THE RIGHT TO EMPLOY
SEPARATE COUNSEL IN ANY SUCH ACTION AND PARTICIPATE IN THE DEFENSE THEREOF, BUT
THE FEES AND EXPENSES OF SUCH COUNSEL SHALL BE PAID BY THE INDEMNIFIED PERSON
UNLESS (I) THE INDEMNIFYING PERSON AGREES TO PAY THE SAME, (II) THE INDEMNIFYING
PERSON FAILS TO ASSUME THE DEFENSE OF SUCH ACTION WITH COUNSEL REASONABLY
SATISFACTORY TO THE INDEMNIFIED PERSON OR (III) THE NAMED PARTIES TO ANY SUCH
ACTION (INCLUDING ANY IMPLEADED PARTIES) INCLUDE BOTH THE INDEMNIFYING PERSON
AND THE INDEMNIFIED PERSON AND SUCH PARTIES HAVE BEEN ADVISED BY SUCH COUNSEL
THAT EITHER (A) REPRESENTATION OF SUCH INDEMNIFIED PERSON AND THE INDEMNIFYING
PERSON BY THE SAME COUNSEL WOULD BE INAPPROPRIATE UNDER APPLICABLE STANDARDS OF
PROFESSIONAL CONDUCT OR (B) THERE MAY BE ONE OR MORE LEGAL DEFENSES AVAILABLE TO
THE INDEMNIFIED PERSON THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE AVAILABLE
TO THE INDEMNIFYING PERSON, IN WHICH CASE THE INDEMNIFYING PERSON SHALL NOT BE
LIABLE FOR THE FEES AND EXPENSES OF MORE THAN ONE SEPARATE FIRM OF ATTORNEYS (IN
ADDITION TO ANY LOCAL COUNSEL) FOR ALL INDEMNIFIED PERSONS.
NO INDEMNIFYING
PERSON SHALL BE LIABLE FOR ANY SETTLEMENT ENTERED INTO WITHOUT ITS WRITTEN
CONSENT, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
NO INDEMNIFYING
PERSON SHALL, WITHOUT THE WRITTEN CONSENT OF SUCH INDEMNIFIED PERSON, EFFECT ANY
SETTLEMENT OF ANY PENDING OR THREATENED PROCEEDING IN RESPECT OF WHICH SUCH
INDEMNIFIED PERSON IS A PARTY AND INDEMNITY HAS BEEN SOUGHT HEREUNDER BY SUCH
INDEMNIFIED PERSON, UNLESS SUCH SETTLEMENT INCLUDES AN UNCONDITIONAL RELEASE OF
SUCH INDEMNIFIED PERSON FROM ALL LIABILITY FOR CLAIMS THAT ARE THE SUBJECT
MATTER OF SUCH PROCEEDING.
(4)
CONTRIBUTION.
IF THE INDEMNIFICATION PROVIDED FOR IN THIS
SECTION 3.5(G) FROM THE INDEMNIFYING PERSON IS UNAVAILABLE TO AN INDEMNIFIED
PERSON HEREUNDER IN RESPECT OF ANY LIABILITIES REFERRED TO HEREIN, THEN THE
INDEMNIFYING PERSON, IN LIEU OF INDEMNIFYING SUCH INDEMNIFIED PERSON, SHALL
CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY SUCH INDEMNIFIED PERSON AS A RESULT
OF SUCH LIABILITIES IN SUCH PROPORTION AS IS APPROPRIATE TO REFLECT THE RELATIVE
FAULT OF THE INDEMNIFYING PERSON AND INDEMNIFIED PERSON IN CONNECTION WITH THE
ACTIONS WHICH RESULTED IN SUCH LIABILITIES, AS WELL AS ANY OTHER RELEVANT
EQUITABLE CONSIDERATIONS.
THE RELATIVE FAULT OF SUCH INDEMNIFYING PERSON AND
INDEMNIFIED PERSON SHALL BE DETERMINED BY REFERENCE TO, AMONG OTHER