Common use of Existing Litigation Clause in Contracts

Existing Litigation. The Existing Lithium Litigation Matters constitute pre-existing Third-Party Claims, which were initiated prior to the Separation Date and for which proper notice has been given, and the Company hereby expressly assumes control of such Existing Lithium Litigation Matters pursuant to Section 8.04(b) as the Indemnifying Party. The parties further agree that the Existing Lithium Litigation Matters are and shall remain and be treated as Third-Party Claims after the Separation Date. Notwithstanding anything herein to the contrary, (a) the Company agrees to indemnify each Parent Indemnitee for the Existing Lithium Litigation Matters pursuant to the terms of indemnification set forth in Article VIII for any and all Losses incurred or suffered by any Parent Indemnified Party whether such Losses arise or accrue prior to, on or following the Separation Date, (b) the Company shall consult with Parent on case management and strategy for such Existing Lithium Litigation Matters and will consider in good faith Parent’s input in respect thereof, (c) Parent shall be permitted to participate in such Existing Lithium Litigation Matters and to retain separate counsel, in each case at Parent’s sole cost and expense and (d) the Company shall not settle or otherwise resolve any such Existing Lithium Litigation Matter without Parent’s prior written consent, which shall not be unreasonably withheld or delayed, unless such settlement or resolution (i) contains no admission of any wrongdoing or culpability on behalf of the Company or Parent or any member of their respective Groups, (ii) contains a full release of both Parent and the Company from all Liability in respect thereof and (iii) would not, in Parent’s reasonable discretion, be reasonably likely to either materially prejudice Parent or any member of its Group in respect of any other ongoing, pending or threatened Action or result in or cause any increase in the cost of any insurance coverage maintained by the Parent Group in respect of such matters. Each of Parent and the Company agrees that the outside legal counsel currently retained in connection with the Existing Lithium Litigation Matters may continue to represent the interests of both Parent and the Company, subject to Section 8.04(b).

Existing Litigation. The With respect to each Existing Lithium Litigation Matters constitute pre-existing Third-Party ClaimsLitigation: (1) Sellers and Kxxxxxxxx hereby acknowledge and agree that, which were initiated prior notwithstanding any contrary provision herein: (A) Sellers and Kxxxxxxxx are jointly and severally obligated under the terms of this Article 13 for all Losses of any WT Indemnitee in connection with any such Existing Litigation, subject to the Separation Date last sentence of Section 13.3(a); and for which proper notice has been given(B) Sellers and Kxxxxxxxx have elected to take control of the defense of the Existing Litigation. (2) The Indemnifying Party shall be entitled to continue to employ and engage counsel of its choice (including AST’s existing counsel as of the date hereof) to handle and defend the Existing Litigation (provided that any other counsel engaged by the Indemnifying Party shall be reasonably satisfactory to WT), at the Indemnifying Party’s cost, risk, and expense. If counsel for the Company hereby expressly assumes control Indemnified Party determines in good faith and advises the Indemnifying Party in writing that under applicable standards of professional conduct there is a conflict of interest on a significant issue between the Indemnifying Party and the Indemnified Party in respect of a Existing Litigation, then the Indemnifying Party shall pay all reasonable fees and expenses of separate counsel for the Indemnified Party with respect to such Existing Litigation; provided, however, that (A) the Indemnifying Party shall be obligated pursuant to this Section 13.4(a)(2) to pay for only one firm of counsel (unless under applicable standards of professional conduct the use of one counsel for that Indemnified Party would present that counsel with a conflict of interest) for all Indemnified Parties in any jurisdiction, and (B) the Indemnifying Party shall cooperate in the defense of any such matter and make its employees and records relating to that defense available to the Indemnified Party. The Indemnified Party shall cooperate in all reasonable respects, at the Indemnifying Party’s request and cost, risk, and expense, with the Indemnifying Party and its counsel in the defense of such Existing Lithium Litigation Matters pursuant to Litigation; provided that the Indemnified Party may, at its own cost, participate in the defense of such Existing Litigation. In each instance, the Indemnifying Party shall pay all amounts that are or become owed or payable by the Indemnifying Party under this Section 8.04(b13.4(a)(2) as within 45 days following the Indemnifying Party’s receipt of any invoice or statement for such owed or payable amounts (whether such invoices or statements are received by the Indemnifying Party directly or as a result of being forwarded to the Indemnifying Party by WT, another Indemnified Party, or a third party). The parties further agree Indemnifying Party shall keep the Indemnified Party apprised of the status of the Existing Litigation, furnish the Indemnified Party with all documents and information the Indemnified Party reasonably requests in connection therewith, and consult with the Indemnified Party before acting on major matters involved in the Existing Litigation, including settlement discussions. Unless the Indemnified Party receives a complete release from all matters involved in the dispute or the judgment or settlement is only for monetary damages that the Existing Lithium Litigation Matters are and shall remain and Indemnifying Party pays in full, no settlement or consent to entry of a judgment of any action for which indemnification may be treated as Third-Party Claims after the Separation Date. Notwithstanding anything herein to the contrary, (a) the Company agrees to indemnify each Parent Indemnitee for the Existing Lithium Litigation Matters pursuant to the terms of indemnification set forth in Article VIII for any and all Losses incurred or suffered by any Parent Indemnified Party whether such Losses arise or accrue prior to, on or following the Separation Date, (b) the Company shall consult with Parent on case management and strategy for such Existing Lithium Litigation Matters and will consider in good faith Parent’s input in respect thereof, (c) Parent payable hereunder shall be permitted to participate in such Existing Lithium Litigation Matters and to retain separate counsel, in each case at Parent’s sole cost and expense and (d) made without the Company shall not settle or otherwise resolve any such Existing Lithium Litigation Matter without Parent’s prior written consentconsent of the Indemnified Party, which shall not to be unreasonably withheld or delayed, unless such settlement or resolution (i) contains no admission of any wrongdoing or culpability on behalf of the Company or Parent or any member of their respective Groups, (ii) contains a full release of both Parent and the Company from all Liability in respect thereof and (iii) would not, in Parent’s reasonable discretion, be reasonably likely to either materially prejudice Parent or any member of its Group in respect of any other ongoing, pending or threatened Action or result in or cause any increase in the cost of any insurance coverage maintained by the Parent Group in respect of such matters. Each of Parent and the Company agrees that the outside legal counsel currently retained in connection with the Existing Lithium Litigation Matters may continue to represent the interests of both Parent and the Company, subject to Section 8.04(b)withheld.

Existing Litigation. The Existing Lithium Litigation Matters constitute pre-existing Third-Party Claims, which were initiated prior to the Separation Date and for which proper notice has been given, and the Company hereby expressly assumes control of such Existing Lithium Litigation Matters pursuant to Section 8.04(b) as the Indemnifying Party. The parties further agree that the Existing Lithium Litigation Matters are and shall remain and be treated as Third-Party Claims after the Separation Date. Notwithstanding anything herein to the contrary, (a) the Company agrees Each of Parent, ASCO GP LLC and Buyer shall promptly notify Seller in writing of any event, fact, circumstance, transaction or occurrence of which their respective executive officers become aware that could reasonably be expected to indemnify give rise to an Existing Litigation Right. If such Existing Litigation Right is held by a Transferred Subsidiary, each Parent Indemnitee for the of Parent, ASCO GP LLC and Buyer shall take all steps reasonably necessary, including executing any assignment or other agreement in a form and substance satisfactory to Seller, to assign such Existing Lithium Litigation Matters pursuant Right to the terms Seller or one of indemnification set forth in Article VIII for any and all Losses incurred or suffered its Affiliates, as designated by any Parent Indemnified Party whether such Losses arise or accrue prior to, on or following the Separation Date, Seller. (b) Without limiting the Company generality of Section 7.10, after the Closing, each of Parent, ASCO GP LLC, Buyer and their respective Subsidiaries shall consult cooperate fully with Parent Seller, at Seller’s expense, in the prosecution of any Existing Litigation Right, including by (i) making available to Seller and its counsel, as promptly as resolved, all witnesses, pertinent records, materials and information in Parent’s, ASCO GP LLC’s, Buyer’s or their Affiliates’ possession or control relating thereto as requested by Seller or its counsel and (ii) otherwise providing any #88639600v31 assistance on case management and strategy for such a timely basis requested by Seller or its counsel to facilitate any Action by Seller or its Affiliates arising out of or relating to an Existing Lithium Litigation Matters and will consider in good faith Parent’s input in respect thereof, Right. (c) Parent Without limiting the generality of Section 7.10, after the Closing, Parent, ASCO GP LLC, Buyer and their respective Subsidiaries shall be permitted to participate in such Existing Lithium Litigation Matters and to retain separate counselcooperate fully with Seller, at Seller’s expense, in each case at Parent’s sole cost and expense and (d) the Company shall not settle or otherwise resolve any such Existing Lithium defense of the Specified Litigation Matter without Parent’s prior written consentMatter, which shall not be unreasonably withheld or delayed, unless such settlement or resolution including by (i) contains no admission making available to Seller and its counsel, as promptly as resolved, all witnesses, pertinent records, materials and information relating thereto which is in the possession or control of any wrongdoing Parent, ASCO GP LLC, Buyer or culpability on behalf of the Company or Parent or any member of their respective Groups, Affiliates as required by Seller or its counsel and (ii) contains a full release of both Parent and otherwise providing any assistance requested by Seller or its counsel to facilitate any defense to the Company from all Liability in respect thereof and (iii) would not, in Parent’s reasonable discretion, be reasonably likely to either materially prejudice Parent or any member of its Group in respect of any other ongoing, pending or threatened Action or result in or cause any increase in the cost of any insurance coverage maintained by the Parent Group in respect of such matters. Each of Parent and the Company agrees that the outside legal counsel currently retained in connection with the Existing Lithium Specified Litigation Matters may continue to represent the interests of both Parent and the Company, subject to Section 8.04(b)Matter.

Existing Litigation. The Existing Lithium Litigation Matters constitute pre-existing Third-Party Claims, which were initiated prior to the Separation Date and for which proper notice has been given, and the Company hereby expressly assumes control of such Existing Lithium Litigation Matters pursuant to Section ‎Section 8.04(b) as the Indemnifying Party. The parties further agree that the Existing Lithium Litigation Matters are and shall remain and be treated as Third-Party Claims after the Separation Date. Notwithstanding anything herein to the contrary, (a) the Company agrees to indemnify each Parent Indemnitee for the Existing Lithium Litigation Matters pursuant to the terms of indemnification set forth in Article ‎Article VIII for any and all Losses incurred or suffered by any Parent Indemnified Party whether such Losses arise or accrue prior to, on or following the Separation Date, (b) the Company shall consult with Parent on case management and strategy for such Existing Lithium Litigation Matters and will consider in good faith Parent’s input in respect thereof, (c) Parent shall be permitted to participate in such Existing Lithium Litigation Matters and to retain separate counsel, in each case at Parent’s sole cost and expense and (d) the Company shall not settle or otherwise resolve any such Existing Lithium Litigation Matter without Parent’s prior written consent, which shall not be unreasonably withheld or delayed, unless such settlement or resolution (i) contains no admission of any wrongdoing or culpability on behalf of the Company or Parent or any member of their respective Groups, (ii) contains a full release of both Parent and the Company from all Liability in respect thereof and (iii) would not, in Parent’s reasonable discretion, be reasonably likely to either materially prejudice Parent or any member of its Group in respect of any other ongoing, pending or threatened Action or result in or cause any increase in the cost of any insurance coverage maintained by the Parent Group in respect of such matters. Each of Parent and the Company agrees that the outside legal counsel currently retained in connection with the Existing Lithium Litigation Matters may continue to represent the interests of both Parent and the Company, subject to Section ‎Section 8.04(b).