Common use of IPO Litigation Clause in Contracts

IPO Litigation. Following the Closing, SPX agrees to indemnify, defend and hold harmless (but only to the extent set forth below) the Company from any Judgments (as hereinafter defined) entered against the Company in, or amounts paid by the Company in settlement of, the IPO Litigation (as hereinafter defined) and any Defense Costs (as hereinafter defined) incurred by the Company from and after the Closing for which the insurers would have been required to reimburse the Company under the terms of the Policies (as hereinafter defined) ("IPO Amounts"); provided, however, that SPX shall only be liable under this Section 5.12 if and to the extent a Judgment has been entered that the applicable SPX insurance policy or policies (collectively, the "Policies") do not insure against the IPO Amounts. SPX's liability under this Section 5.12 shall be limited to the amount that would have been payable by the insurers under the Policies had there been no Judgment entered that the Policies do not insure against the IPO Amounts, and shall therefore be reduced by all amounts that would have reduced the amount of recovery under the terms of the Policies had coverage been in effect, including the amount of any deductible, self-retention or co-payment and any reduction in the amount of coverage as a result of the insurer having to pay other claims under the Policies. SPX shall vigorously defend the IPO Litigation and shall control the defense of the IPO Litigation including any settlement thereof. CNT agrees to, and to cause the Company to, cooperate with SPX in the defense and settlement of the IPO Litigation including providing SPX with access to books and records and personnel of the Company. Following the Closing, CNT shall cause the

IPO Litigation. Following the Closing, SPX agrees to indemnify, defend and hold harmless (but only With respect to the extent set forth below) the Company from any Judgments (as hereinafter defined) entered litigation against the Company inand certain of its directors and officers in the matter pending in the U.S. District Court for the Southern District of New York captioned In re Eloquent, Inc. Initial Public Offering Securities Litigation, Case No. 01-CV-6775; the claims, cross-claims, counterclaims or amounts paid by the Company in settlement of, the IPO Litigation (as hereinafter defined) and any Defense Costs (as hereinafter defined) incurred by the Company from and after the Closing for which the insurers would defenses that have been required to reimburse or are in the Company under future asserted therein or that are related thereto or arise therefrom and the terms of the D&O Policies (as hereinafter defineddefined below) ("IPO Amounts"); provided, however, that SPX shall only be liable under this Section 5.12 if and to the extent a Judgment has been entered that the applicable SPX insurance policy or policies (collectively, the "IPO Litigation"), (a) All written documents provided by the Company or its agents to Acquiror or its Affiliates concerning the IPO Litigation, a list of which is included in Section 3.11 of the Company Letter, are true, correct, complete and, to the Knowledge of the Company, fairly present the status of the matters described in such written documents as of the respective dates of such documents. To the Knowledge of the Company, as of the date of this Agreement, there are no other written documents to which the Company has access containing additional material information regarding the IPO Litigation. (b) The Company has timely paid any and all payments required under the insurance policies identified in Section 3.11(b) of the Company Letter (the "D&O Policies") do not insure against ), each such policy is in full force and effect as of the date of this Agreement and there are no actual or contemplated events, including this Agreement and the transactions contemplated hereby, that will alter, limit, reduce or otherwise affect the coverage provided by those policies. Except for the IPO Amounts. SPX's liability Litigation, neither the Company nor any director or officer has made any claim under this Section 5.12 shall be limited the D&O Policies and to the amount Knowledge of the Company, no other event has occurred that would have been payable by reduce the insurers coverage limits available under the Policies had there been no Judgment entered that D&O Policies. The Company has taken all actions necessary, appropriate or advisable to maintain the Policies do not insure against the IPO Amounts, and shall therefore be reduced by all amounts that would have reduced the amount of recovery under the terms applicability of the D&O Policies had coverage been in effect, including the amount of any deductible, self-retention or co-payment and any reduction in the amount of coverage as a result of the insurer having to pay other claims under the Policies. SPX shall vigorously defend the IPO Litigation and shall control to tender under the defense D&O Policies all potentially insurable claims and costs related to the IPO Litigation. The Company has taken no action, nor has it refrained from action, such that any condition or term of the D&O Policies may have been violated or breached, resulting in any right of denial or reduction in insurance coverage for the IPO Litigation. The Company has taken all necessary actions to report the status of the IPO Litigation under the D&O Policies. (c) To the Knowledge of the Company, there are no facts, events or circumstances that could give rise to coverage exclusions or other coverage limitations under any of the D&O Policies, including without limitation exclusions related to intentional acts or illegal remuneration by the directors, officers and agents of Company and no coverage limitations or exclusions have been asserted by any settlement thereofinsurer in connection with the IPO Litigation. CNT agrees to, and The insurer providing primary coverage among the D&O Policies has not denied its duty to cause defend the Company to, cooperate with SPX in the defense and settlement of the IPO Litigation including providing SPX with access to books and records and personnel none of the insurers issuing the D&O Policies has posited any limitation or exclusion in connection with such duty. (d) The retention on the D&O Policies equals Two Hundred Fifty-Thousand Dollars ($250,000), applicable to defense costs, of which approximately Seventy-Four Thousand Seven Hundred Thirty-Nine Dollars and Fifty-Four Cents ($74,739.54) had been invoiced as of November 30, 2002. The Company will inform Acquiror promptly after receipt of any other invoices of amounts applicable to the retention. A summary supporting the costs associated with the payment of the retention by the Company through July 25, 2002 has been forwarded to the D&O Policy carriers and such costs have not been rejected by the D&O Policy carriers. The Company will submit an updated summary of such costs within 30 days after the execution of this Agreement. The primary D&O Policy carrier has agreed to defense counsel selected by the Company. Following the Closing, CNT shall cause the.

IPO Litigation. Following the Closing, SPX agrees to indemnify, defend and hold harmless (but only to the extent set forth below) the Company from any Judgments (as hereinafter defined) entered against the Company in, or amounts paid by the Company in settlement of, the IPO Litigation (as hereinafter defined) and any Defense Costs (as hereinafter defined) incurred by the Company from and after the Closing for which the insurers would have been required to reimburse the Company under the terms of the Policies (as hereinafter defined) ("IPO Amounts"); provided, however, that SPX shall only be liable under this Section 5.12 if and to the extent a Judgment has been entered that the applicable SPX insurance policy or policies (collectively, the "Policies") do not insure against the IPO Amounts. SPX's liability under this Section 5.12 shall be limited to the amount that would have been payable by the insurers under the Policies had there been no Judgment entered that the Policies do not insure against the IPO Amounts, and shall therefore be reduced by all amounts that would have reduced the amount of recovery under the terms of the Policies had coverage been in effect, including the amount of any deductible, self-retention or co-payment and any reduction in the amount of coverage as a result of the insurer having to pay other claims under the Policies. SPX shall vigorously defend the IPO Litigation and shall control the defense of the IPO Litigation including any settlement thereof. CNT agrees to, and to cause the Company to, cooperate with SPX in the defense and settlement of the IPO Litigation including providing SPX with access to books and records and personnel of the Company. Following the Closing, CNT shall cause thethe - 26 -