Common use of Defense of Litigation Clause in Contracts

Defense of Litigation. The Company shall promptly (and in any event within twenty-four (24) hours) advise Parent of any Proceeding (including any putative class action or derivative litigation) asserted, threatened in writing or orally or commenced by, on behalf of or in the name of, against or otherwise involving the Company, the Company Board, any committee thereof, any of the Company’s directors or officers, or any Company Subsidiary and any Company Subsidiary directors and officers relating to this Agreement, the Merger or any of Transactions (any such Proceeding, a “Transaction Litigation”) and shall keep Parent informed on a reasonably prompt basis regarding any such Transaction Litigation (including by promptly furnishing to the Parent and its Representatives such information relating to such Transaction Litigation as such persons may reasonably request). The Company shall give Parent the opportunity to (a) participate in the defense, prosecution, settlement or compromise of any Transaction Litigation, and (b) consult with counsel to the Company regarding the defense, prosecution, settlement or compromise with respect to any such Transaction Litigation. For purposes of this Section 5.08, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith; provided, however, that without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed) the Company shall not settle or compromise, agree to settle or compromise or take any other material action with respect to such Transaction Litigation.

Defense of Litigation. The (a) Prior to the Effective Time, the Company shall promptly (and in any event event, within twenty-four two (242) hoursBusiness Days) advise Parent, and Parent of shall promptly (and in any Proceeding event, within two (including any putative class action or derivative litigation2) asserted, threatened in writing or orally or commenced by, on behalf of or in the name of, against or otherwise involving Business Days) advise the Company, of any Action commenced or, to such Party’s Knowledge, threatened to be commenced, after the Company Boarddate of this Agreement, any committee thereof, against such Party or any of the Company’s its directors or officers, or officers by any Company Subsidiary and any Company Subsidiary directors and officers stockholder relating to this AgreementAgreement and the transactions contemplated hereby, the Merger or any of Transactions (any such Proceeding, a “Transaction Litigation”) and shall keep Parent or the Company, as applicable, reasonably informed on a reasonably prompt basis regarding any such Transaction Litigation litigation. (including by promptly furnishing b) Prior to the Parent and its Representatives such information relating to such Transaction Litigation as such persons may reasonably request). The Effective Time, the Company shall give Parent the opportunity to (a) consult with the Company regarding, and, if appropriate, subject to a customary joint defense agreement, participate in (but not control), the defense, prosecution, defense or settlement or compromise of any Transaction Litigationsuch Action at Parent’s own expense and shall consider Parent’s views with respect to such Action, and (b) consult with counsel shall not settle, compromise or enter into any agreement or arrangement, or consent to the Company regarding the defenseentry of, prosecutionor fail to defend against entry of, settlement any order or compromise judgment, with respect to any such Transaction Litigation. For purposes of this Section 5.08, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith; provided, however, that Action without the prior written consent of Parent (which such consent shall not to be unreasonably withheld, conditioned or delayed). (c) Prior to the Effective Time, Parent shall give the Company the opportunity to consult with Parent regarding, and, if appropriate, subject to a customary joint defense agreement, participate in (but not control), the defense or settlement of any such Action at the Company’s own expense and shall consider the Company’s views with respect to such Action, and shall not settle, compromise or enter into any agreement or arrangement, or consent to the entry of, or fail to defend against entry of, any order or judgment, with respect to any such Action without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed); provided, that such prior written consent of the Company shall not settle or be required for, and Parent may enter into, any settlement, compromise, agree agreement, arrangement, order or judgment of such Action so long as such settlement, compromise, agreement, arrangement, order or judgment does not include an admission of liability or wrongdoing on the part of, and does not impose any monetary or non-monetary remedy or relief against, the Company or any of its current or former directors or officers (to settle or compromise or take any other material action with respect the extent such individuals are a party to such Transaction LitigationAction). (d) After the Effective Time, Parent may enter into any settlement, compromise, agreement, arrangement, order or judgment of such Action so long as such settlement, compromise, agreement, arrangement, order or judgment does not include an admission of liability or wrongdoing on the part of, and does not impose any monetary or non-monetary remedy or relief against, any of the Company’s current or former directors or officers (to the extent such individuals are a party to such Action). (e) Each Party shall use its reasonable best efforts to cause its Representatives to cooperate with the other Party in the defense against any such Action relating to this Agreement and the transactions contemplated hereby.

Defense of Litigation. The (a) Prior to the Closing, the Company shall promptly (control, and in the Company shall, subject to such limitations as counsel to the Company reasonably determines are necessary or desirable to protect any event within twentyattorney-four (24) hours) advise Parent client privilege of any Proceeding (including any putative class action or derivative litigation) asserted, threatened in writing or orally or commenced by, on behalf of or in the name of, against or otherwise involving the Company, the Company Board, any committee thereof, any of the Company’s directors or officers, or any Company Subsidiary and any Company Subsidiary directors and officers relating to this Agreement, the Merger or any of Transactions (any such Proceeding, a “Transaction Litigation”) and shall keep Parent informed on a reasonably prompt basis regarding any such Transaction Litigation (including by promptly furnishing to the Parent and its Representatives such information relating to such Transaction Litigation as such persons may reasonably request). The Company shall give Parent the opportunity to (a) participate in the defense, prosecution, settlement or compromise defense of any Transaction Litigation, and (b) consult with counsel litigation brought by stockholders of the Company against the Company and/or its directors relating to the Company regarding the defense, prosecution, settlement or compromise with respect to any such Transaction Litigation. For purposes of transactions contemplated by this Section 5.08, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faithAgreement; provided, however, that the Company shall not settle or offer to settle any claim, action, suit, charge, investigation or proceeding against the Company, any of the Company Subsidiaries or any of their respective directors or officers by any stockholder of the Company arising out of or relating to this Agreement or the transactions contemplated by this Agreement without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned delayed or delayed) the conditioned). The Company shall not settle cooperate with any Person that may seek to restrain, enjoin, prohibit or compromiseotherwise oppose the transactions contemplated by this Agreement, agree and the Company shall, subject to settle such limitations as counsel to the Company reasonably determines are necessary or compromise desirable to protect any attorney-client privilege of the Company, cooperate with Parent and Purchaser in resisting any such effort to restrain, enjoin, prohibit or take otherwise oppose such transactions. For the avoidance of doubt, Parent or the Surviving Corporation shall assume control of any other material action of the foregoing matters from and after the Closing Date. (b) In connection with this Agreement, the Company and Parent acknowledge that they share common legal interests with respect to the Abcouwer Matters. As a result of these common legal interests, from and after the date hereof until the Closing Date, Parent shall have the right, in its sole discretion, to participate in, and to retain co-counsel (at Parent’s sole cost and expense) with respect to, the Abcouwer Matters. Parent and Parent’s counsel shall be informed in advance of all matters of significance in the Abcouwer Matters and any actions taken in the Abcouwer Matters shall require the joint approval of the Company and Parent. If, in the reasonable opinion of Parent, the Company or its counsel fails to diligently defend or pursue such Transaction LitigationAbcouwer Matters, Parent shall be entitled to assume control of the Abcouwer Matters. The Company and its counsel shall cooperate with Parent and Parent’s counsel in all reasonable respects in connection with the Abcouwer Matters, and, notwithstanding anything to the contrary herein, any actions taken in respect of the Abcouwer Matters shall require the joint approval of the Company and Parent pursuant to the Joint Defense Agreement. (c) For the avoidance of doubt, Parent shall assume control of the Abcouwer Matters from and after the Closing Date.

Defense of Litigation. The Company shall promptly (control, and to the extent reasonably practicable, notify Parent in any event within twenty-four (24) hours) advise Parent writing of any Proceeding (including any putative class action stockholder litigation or derivative litigation) asserted, other litigation or Proceedings brought or threatened in writing against the Company or orally any of its directors, officers or commenced by, on behalf representatives arising out of or in the name of, against or otherwise involving the Company, the Company Board, any committee thereof, any of the Company’s directors or officers, or any Company Subsidiary and any Company Subsidiary directors and officers relating to this Agreement, Agreement or the Merger or any of Transactions (any such Proceeding, a “Transaction Litigation”) and shall keep Parent informed on a reasonably prompt basis regarding any such Transaction Litigation (including by promptly furnishing to the Parent and its Representatives such information relating to such Transaction Litigation as such persons may reasonably request). The Company shall (i) keep Parent reasonably informed with respect to any material developments regarding the defense of any Transaction Litigation, (ii) give Parent the opportunity to (a) participate participate, at Parent’s sole cost and expense, in the defense, prosecutionsettlement or prosecution of any Transaction Litigation, (iii) consult with Parent with respect to the defense, settlement or compromise and prosecution of any Transaction Litigation, and (biv) consult with counsel to the Company regarding the defense, prosecution, settlement or compromise consider in good faith Parent’s advice with respect to any Transaction Litigation; provided, however, that the Company shall not settle any such Transaction LitigationLitigation without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). For purposes of this Section 5.085.14, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation Litigation, which the Company and its counsel shall consider in good faith; provided, however, that without the prior written consent of Parent (which consent shall but will not be unreasonably withheld, conditioned afforded any decision-making power or delayed) other authority over such Transaction Litigation except for the Company shall not settle or compromise, agree to settle settlement or compromise or take any other material action with respect to such Transaction Litigationconsent set forth above.

Defense of Litigation. The Company shall promptly (and an in any event within twentyforty-four eight (2448) hours) advise Parent of any Proceeding (including any putative class action or derivative litigation) asserted, threatened in writing or orally or commenced by, on behalf of or in the name of, against or otherwise involving the Company, the Company Board, any committee thereof, any of the Company’s directors or officers, or any Company Subsidiary and any Company Subsidiary directors and officers relating to this Agreement, the Merger or any of the Transactions (any such Proceeding, a “Transaction Litigation”) and shall keep Parent informed on a reasonably prompt basis regarding any such Transaction Litigation (including by promptly furnishing to the Parent and its Representatives such information relating to such Transaction Litigation as such persons Parent may reasonably request); provided, that without limiting the Company’s obligation to deliver notice of any Transaction Litigation pursuant to this Section 5.08, the failure by the Company to deliver notice of any Transaction Litigation shall not be taken into account for purposes of determining whether any of the conditions set forth in Article VI have been satisfied or give rise to any right to terminate under Article VII if a Dual Representative has actual knowledge of such Transaction Litigation. The Company shall give Parent the opportunity to (a) participate in the defense, prosecution, settlement or compromise of any Transaction Litigation, and (b) consult with counsel to the Company regarding the defense, prosecution, settlement or compromise with respect to any such Transaction Litigation. For purposes of this Section 5.08, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider give Parent the right to review and comment on all filings or responses to be made before such filings or responses are made by the Company in connection with the Transaction Litigation (and the Company shall in good faithfaith take such comments into account); provided, however, that without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed) the Company shall not settle or compromise, agree to settle or compromise or take any other material action with respect to such Transaction LitigationLitigation without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed).

Defense of Litigation. The Company shall promptly (and in any event within twenty-four (24) hours) advise Parent of any Proceeding (including any putative class action or derivative litigation) asserted, threatened in writing or orally or commenced by, on behalf of or in the name of, against or otherwise involving the Company, the Company Board, any committee thereof, thereof or any of the Company’s directors or officers, or any Company Subsidiary and any Company Subsidiary directors and officers relating to this Agreement, the Merger or any of Transactions (any such Proceeding, a “Transaction Litigation”) and shall keep Parent informed on a reasonably prompt basis regarding any such Transaction Litigation (including by promptly furnishing to the Parent and its Representatives such information relating to such Transaction Litigation as such persons may reasonably request)Litigation. The Company shall give Parent the opportunity to (a) participate in the defense, prosecution, settlement or compromise of any Transaction Litigation, and (b) consult with counsel to the Company regarding the defense, prosecution, settlement or compromise with respect to any such Transaction Litigation. For purposes of this Section ‎Section 5.08, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith; provided, however, that the Company shall not settle or compromise or agree to settle or compromise any Transaction Litigation without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed) the Company shall not settle or compromise, agree to settle or compromise or take any other material action with respect to such Transaction Litigation).

Defense of Litigation. The Company (a) RMT Partner shall promptly (and in any event within twenty-four (24) hours) advise Parent keep Remainco informed of the defense of any Proceeding (including any putative class action or derivative litigation) asserted, threatened in writing or orally or commenced by, on behalf Action brought by shareholders of RMT Partner or in the name of, of RMT Partner against RMT Partner or otherwise involving the Company, the Company Board, any committee thereof, any of the Company’s its directors or officers, or any Company Subsidiary and any Company Subsidiary directors and officers relating to the transactions contemplated by this Agreement, including the Merger Merger; provided that prior to the Effective Time, RMT Partner shall not compromise or settle, or agree to compromise or settle, any such Action to the extent (i) such Action includes Remainco or any of Transactions its Subsidiaries, directors or officers as named defendants, or (any ii) such Proceeding, a “Transaction Litigation”) and shall keep Parent informed on a reasonably prompt basis regarding any such Transaction Litigation (including by promptly furnishing to the Parent and its Representatives such information relating to such Transaction Litigation as such persons may reasonably request). The Company shall give Parent the opportunity to (a) participate in the defense, prosecutioncompromise, settlement or compromise agreement would reasonably be expected to have a material adverse effect on the ability of any Transaction Litigationthe Parties to perform their respective obligations hereunder, and (b) consult with counsel or to consummate the Company regarding the defensetransactions contemplated hereby in a timely manner, prosecution, settlement or compromise with respect to any such Transaction Litigation. For purposes of this Section 5.08, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith; provided, however, that each case without the prior written consent of Parent Remainco (which consent shall not to be unreasonably withheld, conditioned or delayed). (b) Remainco shall keep RMT Partner informed of the Company defense of any Action brought by stockholders of Remainco or in the name of Remainco against Remainco or its directors or officers relating to the transactions contemplated by this Agreement, including the Merger; provided that prior to the Effective Time, Remainco shall not settle compromise or settle, or agree to compromise or settle, any such Action to the extent (i) such Action includes RMT Partner or any of its Subsidiaries, directors or officers as named defendants, or (ii) such compromise, agree settlement or agreement would reasonably be expected to settle have a material adverse effect on the ability of the Parties to perform their respective obligations hereunder, or compromise to consummate the transactions contemplated hereby in a timely manner, in each case without the prior written consent of RMT Partner (not to be unreasonably withheld, conditioned or take any other material action with respect to such Transaction Litigationdelayed).