Selection of Counsel. In the event the Company shall be obligated under Section 6(c) hereof to pay the expenses of any proceeding against Executive, the Company, if appropriate, shall be entitled to assume the defense of such proceeding, with counsel approved by Executive, which approval shall not be unreasonably withheld (it being understood and agreed that the fact that such counsel is representing the Company in such proceeding shall not be grounds for withholding approval except pursuant to clause (ii)(B) below), upon the delivery to Executive of written notice of its election so to do. After delivery of such notice, the Company will not be liable to Executive under this Agreement for any fees of counsel subsequently incurred by Executive with respect to the same proceeding, provided that # Executive shall have the right employ its counsel in any such proceeding at Executive’s expense, and # if # the employment of counsel by Executive has been previously authorized by the Company, which authorization has not been revoked, # Executive shall have reasonably concluded that there may be a conflict of interest between the Company and Executive in the conduct of any such defense or # the Company shall not, in fact, have employed counsel to assume the defense of such proceeding, then, in the case of [(A), (B), or (C) above], the fees and expenses of Executive’s counsel shall be at the expense of the Company.

Selection of Counsel. In the event the Company shall be obligated under Section 2(a) hereof to pay the expenses of any proceeding against Indemnitee, the 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 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 # Indemnitee shall have the right to employ its counsel in any such proceeding at Indemnitee's expense; and # if # the employment of counsel by Indemnitee has been previously authorized by the Company, # Indemnitee shall have reasonably concluded that there may be a conflict of interest between Company and Indemnitee in the conduct of any such defense, or # the Company shall not, 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.

Selection of Counsel. In the event the Company shall be obligated hereunder to pay the Expenses of any Claim, the Company shall be entitled to assume the defense of such Claim 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 Claim; provided that, # Indemnitee shall have the right to employ Indemnitee’s counsel in any such Claim at Indemnitee’s expense and # if # the employment of counsel by Indemnitee has been previously authorized by the Company, # Indemnitee shall have reasonably concluded that there is a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or # the Company shall not continue to retain such counsel to defend such Claim, then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company. The Company shall have the right to conduct such defense as it sees fit in its sole discretion, including the right to settle any claim against Indemnitee without the consent of the Indemnitee; provided that the Company shall not settle any Claim (or any part thereof) in a manner that imposes any penalty or liability on Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld. The Company shall not be entitled, without the consent of Indemnitee, to assume the defense of any claim brought by or in the right of the Company.

Selection of Counsel. In the event the Company shall be obligated under Section 3(a) to advance the expenses of any Proceeding against Indemnitee, the Company, if appropriate, shall be entitled to assume the defense of such Proceeding, with counsel approved by Indemnitee, upon the delivery to Indemnitee of written notice of its election and 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 retention of such counsel by the Company, the Company shall not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same Proceeding, 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 unless: # the employment of counsel by Indemnitee has been previously authorized by the Company, # 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, # the Company shall not, in fact, have employed counsel to assume the defense of such Proceeding, or # 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, in each of which cases the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company, or as to which Indemnitee shall have made the determination provided for in # above or under the circumstances provided for in # 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 and Assumption of Defense. In the event the Company is obligated under Section 8 hereof to pay, and pays the Expenses of any Proceeding against Indemnitee, the 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 that # Indemnitee shall have the right to employ his or her counsel in any such Proceeding at Indemnitee’s expense; and # if # the employment of counsel by Indemnitee has been previously authorized by the Company, # counsel to Indemnitee shall have reasonably concluded that there may be a conflict of interest or position between the Company and Indemnitee on any significant issue between the Company and Indemnitee in the conduct of any such defense or # the Company shall not, in fact, have employed counsel approved by Indemnitee to assume the defense of such Proceeding, then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company, except as otherwise expressly provided by this Agreement and provided that Indemnitee’s counsel shall cooperate reasonably with the Company’s counsel to minimize the cost of defending claims against the Company and Indemnitee. The Company shall not be entitled, without the consent of Indemnitee, to assume the defense of any claim brought by or in the right of the Company or as to which counsel for Indemnitee shall have reasonably made the conclusion provided for in [clause (B) above].

Selection. The Board shall receive, in good faith, advice from the Radoff Parties about the selection of the New Director and, if applicable, the Potential Director.

Counsel. This Subscription Agreement and all the other Transaction Documents related to the Offering have been prepared by Fenwick & West LLP, as counsel to the Company (“Counsel”), after full disclosure of its representation of the Company and with the consent and direction of the Company and the Purchaser. The Purchaser acknowledges that he, she or it is fully aware of his, her or its right to the advice of counsel independent from that of the Company, that Counsel has advised the Purchaser of such right and disclosed to the Purchaser the risks in not seeking such independent advice, and that he, she or it understands the potentially adverse interests of the parties with respect to the Transaction Documents. The Purchaser further acknowledges that no representations have been made with respect to the tax or other consequences of the Transaction Documents to the Purchaser and that he, she or it has been advised of the importance of seeking independent counsel with respect to such consequences. By executing this Subscription Agreement, the Purchaser represents that he, she or it has, after being advised of the potential conflicts between the Purchaser and the Company with respect to the future consequences of the Transaction Documents, either consulted independent legal counsel or elected, notwithstanding the advisability of seeking such independent legal counsel, not to consult such independent legal counsel.

Counsel. This Subscription Agreement and all the other Transaction Documents related to the Offering have been prepared by Fenwick & West LLP, as counsel to the Company (“Counsel”), after full disclosure of its representation of the Company and with the consent and direction of the Company and the Purchaser. The Purchaser acknowledges that he, she or it is fully aware of his, her or its right to the advice of counsel independent from that of the Company, that Counsel has advised the Purchaser of such right and disclosed to the Purchaser the risks in not seeking such independent advice, and that he, she or it understands the potentially adverse interests of the parties with respect to the Transaction Documents. The Purchaser further acknowledges that no representations have been made with respect to the tax or other consequences of the Transaction Documents to the Purchaser and that he, she or it has been advised of the importance of seeking independent counsel with respect to such consequences. By executing this Subscription Agreement, the Purchaser represents that he, she or it has, after being advised of the potential conflicts between the Purchaser and the Company with respect to the future consequences of the Transaction Documents, either consulted independent legal counsel or elected, notwithstanding the advisability of seeking such independent legal counsel, not to consult such independent legal counsel.

Counsel. Key Employee acknowledges that Key Employee fully understands Key Employee’s right to discuss this Agreement with independent counsel of Key Employee’s choice, that Key Employee has carefully read and fully understands this entire Agreement and that Key Employee is voluntarily entering into this Agreement.

Counsel. The Executive acknowledges that he is executing a legal document that contains certain duties, obligations and restrictions as specified herein. The Executive furthermore acknowledges that he has been advised of his right to retain legal counsel, and that he has either been represented by legal counsel prior to his execution hereof or has knowingly elected not to be so represented.