Common use of Extent of Cooperation Clause in Contracts

Extent of Cooperation. (1) Within sixty (60) days of the Effective Date, or at a time mutually agreed upon by the Parties, and subject to any confidentiality order in the Proceedings and the other provisions of this Settlement Agreement, the Settling Defendants shall, insofar as such production has not already been made and production is not prohibited by law, use reasonable efforts to: (a) Produce the LGC Disclosure; (b) Identify by way of Xxxxx stamp numbers, if such numbering already exists, any Settling Defendants’ Documents within the LGC Disclosure that the Settling Defendants believe may support the claims currently made in the Ontario and Quebec Proceedings and/or that show the Settling Defendants’ Lithium Batteries sales, pricing, capacity or production; (c) Provide reasonable assistance to Class Counsel in understanding the Lithium Batteries transactional sales, production and cost data produced by the Settling Defendants in the LGC Disclosure, including a reasonable number of written and/or telephonic communications with Class Counsel; and (d) Provide electronic copies, if available, of any Documents relating to the Settling Defendants’ Canadian sales of Lithium Batteries which were considered by the Settling Defendants in the negotiation of this Settlement Agreement, if not already included in the LGC Disclosure. (2) The obligation to produce Documents pursuant to section 4.1(1) shall be a continuing obligation to the extent additional Documents are produced in the U.S. Litigation by the Settling Defendants following the initial productions pursuant to this Settlement Agreement. (3) The Settling Defendants make no representation regarding and shall bear no liability with respect to the accuracy of or that they have, can or will produce a complete set of any of the Documents described in section 4.1(1), and the failure to do so shall not constitute a breach or violation of this Settlement Agreement. (4) Documents provided to Class Counsel in accordance with section 4.1(1) shall, to the extent possible, be provided in the format agreed upon in the Discovery Plan implemented in the Ontario Proceeding. (5) The Settling Defendants further agree, at the request of Class Counsel, upon reasonable notice, and subject to any legal restrictions, to make reasonable efforts to make available at a mutually convenient time, up to two (2) current employees of the Settling Defendants who have knowledge of the allegations in the Ontario and Quebec Proceedings to provide information regarding the allegations raised in the Ontario and Quebec Proceedings in a personal interview with Class Counsel and/or experts retained by Class Counsel. The employees shall be made available in Canada or such other place as agreed to by Counsel for the Settling Defendants and Class Counsel. Costs incurred by, and expenses of, the employees of the Settling Defendants in relation to such interviews and costs of an interpreter or otherwise related to foreign language translation in connection with such interviews shall be the responsibility of the Settling Defendants. If an employee refuses to provide information or otherwise cooperate, the Settling Defendants shall use reasonable efforts to make him/her available for an interview with Class Counsel and/or experts retained by Class Counsel. The failure of an employee to agree to make him or herself available, or to otherwise cooperate, with the Plaintiffs shall not constitute a violation of this Settlement Agreement. Any such interviews shall not exceed six hours. (6) The Settling Defendants further agree to make reasonable best efforts to make available up to two (2) current employees of the Settling Defendants who have knowledge of the allegations in the Ontario and Quebec Proceedings to provide evidence at the trials of the Ontario and Quebec Proceedings in Canada, or to provide an affidavit or declaration and attend at a cross-examination in support of summary judgment motions in the Ontario and Quebec Proceedings. The failure or refusal of any such employee to agree to make him or herself available, to provide testimony, to provide an affidavit or declaration, to attend at a cross-examination or to otherwise cooperate with the Plaintiffs shall not constitute a breach or violation of the obligations of the Settling Defendants under this Settlement Agreement, and shall not provide any basis for the termination of this Settlement Agreement, so long as the Settling Defendants comply with their obligations under this section. (7) Subject to the rules of evidence, any court order with regard to confidentiality and the other provisions of this Settlement Agreement, the Settling Defendants agree to use reasonable efforts to provide affidavits for use at trial or otherwise in the Ontario and Quebec Proceedings for the purpose of supporting the submission into evidence in the Ontario and Quebec Proceedings of any information, transactional data and/or Documents provided by the Settling Defendants in accordance with this Settlement Agreement and for the prosecution of the Ontario and Quebec Proceedings. If, and only if, a Court should determine that affidavits are inadequate for the purpose of submitting into evidence such information, transactional data and/or Documents produced by the Settling Defendants, the Settling Defendants agree to use reasonable efforts to make available for testimony at trial or otherwise appropriate current employees of the Settling Defendants, as is reasonably necessary for the prosecution of the Ontario and Quebec Proceedings and, specifically, for the purpose of admitting into evidence such information, transactional data and/or Documents provided by the Settling Defendants pursuant to section 4.1 herein. The Plaintiffs will work to minimize any burden on the Settling Defendants pursuant to this section. (8) Nothing in this Settlement Agreement shall require or be construed to require the Settling Defendants, or any of their present, former or future officers, directors or employees, to perform any act, including the transmittal or disclosure of any information, which would violate the law of this or any other jurisdiction, or any court order (including the U.S. Protective Order). (9) Nothing in this Settlement Agreement shall require, or shall be construed to require, the Settling Defendants or any representative or employee of the Settling Defendants to disclose or produce any Documents or information prepared by or for Counsel for the Settling Defendants, or that is not within the possession, custody or control of the Settling Defendants, or to disclose or produce any Documents or information in breach of any order, regulatory directive, rule or law of this or any jurisdiction, or subject to solicitor-client privilege, litigation privilege, or any other privilege, or to disclose or produce any information or Documents they obtained on a privileged or co-operative basis from any party to any action or proceeding who is not a Releasee. (10) If any Documents protected by any privilege and/or any privacy law or other order, regulatory directive, rule or law of this or any applicable jurisdiction including but not limited to Canada and the United States are accidentally or inadvertently produced, such Documents shall be promptly returned to the Settling Defendants and the Documents and the information contained therein shall not be disclosed or used directly or indirectly, except with the express written permission of the Settling Defendants, and the production of such Documents shall in no way be construed to have waived in any manner any privilege or protection attached to such Documents. (11) The Settling Defendants’ obligations to cooperate as particularized in this section shall not be affected by the release provisions in section 7 of this Settlement Agreement. Unless this Settlement Agreement is not approved, is terminated or otherwise fails to take effect for any reason, the Settling Defendants’ obligations to cooperate shall cease at the date of the Plaintiffs’ settlement with all Non-Settling Defendants, or final judgment in the Ontario and Quebec Proceedings against all Non-Settling Defendants. (12) In the event that the Settling Defendants materially breach this section 4.1, the Ontario and Quebec Plaintiffs may move before the appropriate Court to enforce the terms of this Settlement Agreement. (13) The Settlement Agreement does not abrogate any subpeona rights that the Plaintiffs have in respect of the current or former officers, directors and/or employees of the Settling Defendants. (14) Subject to sections 4.1 (12) and (13), the provisions set forth in this section 4.1 are the exclusive means by which the Plaintiffs, the Settlement Class Members and Class Counsel may obtain discovery, information, or Documents from the Settling Defendants or their current or former officers, directors or employees. The Plaintiffs, the Settlement Class Members and Class Counsel agree that they shall not pursue any other means of discovery against, or seek to compel the evidence of, the Settling Defendants or their current or former officers, directors, employees, agents, or counsel, whether in Canada or elsewhere and whether under the rules or laws of this or any other Canadian or foreign jurisdiction. (15) A material factor influencing the Settling Defendants’ decision to execute this Settlement Agreement is their desire to limit the burden and expense of this litigation. Accordingly, the Plaintiffs and Class Counsel agree to exercise good faith in seeking cooperation from the Settling Defendants, agree not to seek information that is unnecessary, cumulative or duplicative and agree otherwise to avoid imposing undue, unreasonable or disproportionate burden or expense on the Settling Defendants. (16) The scope of the Settling Defendants’ cooperation under this Settlement Agreement shall be limited to the allegations asserted in the Proceedings as presently filed, subject to the requirements of 4.1(1).