OF NOTICE OF THE COMMENCEMENT OF ANY ACTION OR COMMENCEMENT OF A
CLAIM WHICH MAY RESULT IN INDEMNITY PURSUANT TO SECTION 7(A) OR (B), SUCH
INDEMNITEE WILL, IF A CLAIM IN RESPECT THEREOF IS TO BE MADE
9
AGAINST THE INDEMNIFYING PARTY UNDER SECTION 7(A) OR (B), NOTIFY THE
INDEMNIFYING PARTY IN WRITING OF THE COMMENCEMENT THEREOF, BUT ANY FAILURE OR
DELAY IN NOTIFYING THE INDEMNIFYING PARTY WILL NOT RELIEVE THE INDEMNIFYING
PARTY FROM ANY LIABILITY WHICH IT MAY HAVE TO ANY INDEMNITEE HEREUNDER UNLESS
THE INDEMNIFYING PARTY IS MATERIALLY PREJUDICED BY SUCH DELAY.
THE INDEMNIFYING
PARTY SHALL BE ENTITLED TO PARTICIPATE IN, AND, TO THE EXTENT THAT IT MAY WISH,
JOINTLY WITH ANY OTHER INDEMNIFYING PARTY SIMILARLY NOTIFIED, TO ASSUME THE
DEFENSE THEREOF, WITH COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNITEE, AFTER
NOTICE FROM THE INDEMNIFYING PARTY TO SUCH INDEMNITEE OF ITS ELECTION TO ASSUME
THE DEFENSE THEREOF.
FOLLOWING ANY SUCH ASSUMPTION OF THE DEFENSE, THE
INDEMNIFYING PARTY SHALL NOT BE LIABLE TO SUCH INDEMNITEE FOR ANY LEGAL OR OTHER
EXPENSES SUBSEQUENTLY INCURRED BY SUCH INDEMNITEE IN CONNECTION WITH THE DEFENSE
THEREOF. THE INDEMNITEE SHALL HAVE THE RIGHT TO EMPLOY ONE COUNSEL PER
JURISDICTION TO REPRESENT SUCH INDEMNITEE 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 THE INDEMNITEE UNLESS, IN THE REASONABLE JUDGMENT OF SUCH
INDEMNITEE, IT IS ADVISABLE FOR SUCH PARTY TO BE REPRESENTED BY SEPARATE COUNSEL
BECAUSE, IN THE REASONABLE DISCRETION OF SEPARATE COUNSEL, SEPARATE DEFENSES ARE
AVAILABLE, OR BECAUSE A CONFLICT OF INTEREST EXISTS BETWEEN SUCH INDEMNITEE AND
INDEMNIFYING PARTY IN RESPECT OF SUCH CLAIM, OR BECAUSE THE INDEMNIFYING PARTY
SHALL HAVE FAILED PROMPTLY TO ASSUME THE DEFENSE OF SUCH ACTION AND TO
REASONABLY DEFEND SUCH ACTION, AND IN ANY SUCH LIMITED EVENT THE REASONABLE FEES
AND EXPENSES OF SUCH SEPARATE COUNSEL SHALL BE PAID BY THE INDEMNIFYING PARTY.
NOTWITHSTANDING THE FOREGOING, IF THE COMPANY IS AN INDEMNITEE, THE COMPANY
SHALL DESIGNATE THE ONE COUNSEL, AND IN ALL OTHER CIRCUMSTANCES, THE ONE COUNSEL
SHALL BE DESIGNATED BY A MAJORITY IN INTEREST BASED UPON THE REGISTRABLE
SECURITIES OF THE INDEMNITEES.
NO INDEMNIFYING PARTY MAY SETTLE OR COMPROMISE,
OR CONSENT TO THE ENTRY OF ANY JUDGMENT WITH RESPECT TO, ANY CLAIM WITHOUT THE
PRIOR WRITTEN CONSENT OF THE INDEMNITEE (NOT UNREASONABLY WITHHELD, DELAYED OR
CONDITIONED), UNLESS SUCH SETTLEMENT, COMPROMISE OR JUDGMENT INCLUDES A FULL AND
UNCONDITIONAL RELEASE OF SUCH INDEMNITEE FROM ANY AND ALL LIABILITY IN RESPECT
OF SUCH CLAIM AND INVOLVES SOLELY THE PAYMENT OF MONETARY DAMAGES.
NO
INDEMNITEE MAY SETTLE OR COMPROMISE, OR CONSENT TO THE ENTRY OF ANY JUDGMENT
WITH RESPECT TO, ANY CLAIM WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNIFYING
PARTY, NOT TO BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.
(D)
CONTRIBUTION.
IF FOR ANY REASON THE FOREGOING INDEMNITY IS
HELD BY A COURT OF COMPETENT JURISDICTION TO BE UNAVAILABLE, THEN THE
INDEMNIFYING PARTY SHALL CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY THE
INDEMNITEE AS A