Common use of Management of Actions Clause in Contracts

Management of Actions. This Section 9.11 shall govern the management and direction of pending and future Actions in which members of the Exelon Group or the Constellation Group are named as parties, but shall not alter the allocation of Liabilities set forth in Article II unless otherwise expressly set forth in this Section 9.11. (a) From and after the Distribution, the Constellation Group shall direct the defense or prosecution of any (i) Actions set forth on Schedule XVII and (ii) other Actions (other than Actions set forth on Schedule XVIII or Schedule XIX) that constitute only Constellation Liabilities or involve only Constellation Assets. (b) From and after the Distribution, the Exelon Group shall direct the defense or prosecution of any (i) Actions set forth on Schedule XVIII and (ii) other Actions (other than Actions set forth on Schedule XVII or Schedule XIX) that constitute only Exelon Liabilities or involve only Exelon Assets. (c) From and after the Distribution, the Parties shall separately but cooperatively manage any (i) Actions set forth in Schedule XIX and (ii) other Actions (other than Actions set forth on Schedule XVII or Schedule XVIII) that relate, or may relate, to both an Exelon Asset or Exelon Liability, on the one hand, and a Constellation Asset or a Constellation Liability, on the other hand (such Actions in clauses (i) and (ii), the “Mixed Actions”). The Parties shall, as appropriate, cooperate in good faith and take all reasonable actions to provide for any appropriate joinder or change in named parties to such Mixed Actions such that the appropriate member of each Party or Group is party thereto. The Parties shall reasonably cooperate and consult with each other, and to the extent permissible and necessary or advisable, maintain a joint defense in a manner that would preserve for both Parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to any Mixed Action. Notwithstanding anything to the contrary herein, and except as set forth in Schedule XIX, the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by the Parties unless otherwise agreed by the Parties) or retain separate counsel (in which case each Party will bear the cost of its separate counsel) with respect to any Mixed Action; provided that the Parties shall bear their own discovery costs and shall share equally joint litigation costs. In any Mixed Action, each of Exelon and Constellation may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the Exelon Business or the Constellation Business, respectively; provided that each Party shall in good faith make reasonable commercial efforts to avoid adverse effects on the other Party. (d) To the maximum extent permitted by applicable Law, the rights to recovery of each Party’s Subsidiaries in respect of any past, present or future Action are hereby delegated to such Party. It is the intent of the Parties that the foregoing delegation shall satisfy any Law requiring such delegation to be effected pursuant to a power of attorney or similar instrument. The Parties and their respective Subsidiaries shall execute such further instruments or documents as may be necessary to effect such delegation.

Management of Actions. This Section 9.11 5.12 shall govern the management and direction of pending and future Actions in which members of the Exelon Vista Outdoor Group or the Constellation Revelyst Group are named as parties, but shall not alter the allocation of Liabilities set forth in Article II unless otherwise expressly set forth in this Section 9.115.12. (a) From and after the DistributionClosing, the Constellation Revelyst Group shall direct the defense or prosecution of any (i) Actions set forth on Schedule XVII 5.12(a) and (ii) other Actions (other than Actions set forth on Schedule XVIII 5.12(a) or Schedule XIX5.12(b)) that constitute only Constellation Revelyst Liabilities or involve only Constellation Revelyst Assets. (b) From and after the DistributionClosing, the Exelon Vista Outdoor Group shall direct the defense or prosecution of any (i) Actions set forth on Schedule XVIII 5.12(b) and (ii) other Actions (other than Actions set forth on Schedule XVII 5.12(a) or Schedule XIX5.12(b)) that constitute only Exelon Vista Outdoor Liabilities or involve only Exelon Vista Outdoor Assets. (c) The Party controlling the defense of any Action will keep the non-controlling Party reasonably advised of the status of such Action, and the Parties shall cooperate with each other in all reasonable respects in connection with the defense of such Action. The Indemnitee shall have the right to participate in the defense of any Action with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnitee. Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be entitled to control the defense or settlement of, or appoint defense counsel with respect to the defense or settlement of, but may participate in, at its own expense, any Action that (i) seeks a temporary restraining order, a preliminary or permanent injunction, specific performance or equitable relief against the Indemnitee, (ii) involves criminal allegations relating to the Indemnitee Party or any of its affiliates, (iii) seeks to unwind the Transactions or the Revelyst Transactions, (iv) the Indemnifying Party does not diligently conduct the defense of the Action (in the reasonable opinion of the Indemnitee), or (v) there exists a reasonably apparent conflict of interest in the conduct of the defense between the Indemnifying Party and the Indemnitee, other than any conflict of interest arising out of the Parties’ relationship under this Agreement. (d) From and after the DistributionClosing, the Parties shall separately but cooperatively manage any (i) Actions set forth in Schedule XIX and (ii) other Actions (other than Actions set forth on Schedule XVII 5.12(a) or Schedule XVIII5.12(b)) that relate, involve or may relate, to constitute both an Exelon a Vista Outdoor Asset or Exelon Vista Outdoor Liability, on the one hand, and a Constellation Revelyst Asset or a Constellation Revelyst Liability, on the other hand (such Actions in clauses (i) and (ii)Actions, the “Mixed Actions”) shall be managed by the Party with the greater financial exposure with respect thereto (taking into account the provisions of this Article V), as determined in good faith by the Parties; provided that if a Mixed Action involves the pursuit of criminal penalties or injunctive or other equitable relief (other than any such injunctive or other equitable relief that is solely incidental to the granting of money damages) against the other Party, any other member of the other Party’s Group or any of their respective stockholders, directors, officers, members, agents or employees, the other Party shall be entitled to control the defense of the applicable claims against the other Party, any other member of the other Party’s Group or any of their respective stockholders, directors, officers, members, agents or employees. The Parties shall, as appropriate, shall cooperate in good faith and take all reasonable actions to provide for any appropriate joinder or change in named parties to such Mixed Actions such that the appropriate Party or member of each Party or such Party’s Group is party thereto. The Parties shall reasonably cooperate and consult with each otherother and, and to the extent permissible and necessary or advisable, maintain a joint defense in a manner that would preserve for both Parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to any Mixed Action. The Party managing a Mixed Action shall, on a quarterly basis, or if a material development occurs as soon as reasonably practicable thereafter, inform the other Party of the status of and developments relating to such Mixed Action and provide copies of any material documents, notices or other materials related to such Mixed Action; provided that the failure to provide any such documents, notices or other materials shall not be a basis for liability of a Party managing such Mixed Action except and solely to the extent that the other Party shall have been actually prejudiced thereby. Notwithstanding anything to the contrary herein, and except as set forth in Schedule XIX, the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by the Parties unless otherwise agreed by the Parties) or retain separate counsel (in which case each Party will bear the cost of its separate counsel) with respect to any Mixed Action; provided that the Parties shall bear their own share discovery costs and shall share equally other joint litigation costscosts in proportion to their respective expected financial exposure or respective expected financial recovery, as applicable. In any Mixed Action, each of Exelon Vista Outdoor and Constellation Revelyst may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the Exelon Vista Outdoor Business or the Constellation Revelyst Business, respectively; provided that each Party shall in good faith make commercially reasonable commercial efforts to avoid adverse effects on the other Party. (de) To the maximum extent permitted by applicable Law, the rights to recovery of each Party’s Subsidiaries in respect of any past, present or future Action are hereby delegated to such Party. It is the intent of the Parties that the foregoing delegation shall satisfy any Law requiring such delegation to be effected pursuant to a power of attorney or similar instrument. The Parties and their respective Subsidiaries shall execute such further instruments or documents as may be necessary to effect such delegation.

Management of Actions. This Section 9.11 4.11 shall govern the management and direction of pending and future Actions in which members of the Exelon SITC Group or the Constellation CURB Group are named as parties, but shall not alter the allocation of Liabilities set forth in Article II unless otherwise expressly set forth in this Section 9.114.11. (a) From and after the DistributionEffective Time, the Constellation SITC Group shall direct the defense or prosecution of any (i) Actions set forth on Schedule XVII and (ii) other Actions (other than Actions set forth on Schedule XVIII or Schedule XIX) that constitute only Constellation SITC Liabilities or involve only Constellation SITC Assets. (b) From and after the DistributionEffective Time, the Exelon CURB Group shall direct the defense or prosecution of any (i) Actions set forth on Schedule XVIII and (ii) other Actions (other than Actions set forth on Schedule XVII or Schedule XIX) that constitute only Exelon CURB Liabilities or involve only Exelon CURB Assets. (c) From and after the DistributionEffective Time, the Parties shall separately but cooperatively manage any (i) Actions set forth in Schedule XIX and (ii) other Actions (other than Actions set forth on Schedule XVII that involve or Schedule XVIII) that relate, or may relate, to constitute both an Exelon a SITC Asset or Exelon SITC Liability, on the one hand, and a Constellation CURB Asset or a Constellation CURB Liability, on the other hand (such Actions in clauses (i) and (ii)Actions, the “Mixed Actions”) shall be managed by the Party with the greater financial exposure with respect thereto (taking into account the provisions of this Article IV), as determined in good faith by the Parties; provided that if a Mixed Action involves the pursuit of criminal penalties or injunctive or other equitable relief (other than any such injunctive or other equitable relief that is solely incidental to the granting of money damages) against the other Party, any other member of the other Party’s Group or any of their respective stockholders or their Representatives, the other Party shall be entitled to control the defense of the applicable claims against the other Party, any other member of the other Party’s Group or any of their respective stockholders or Representatives. The Parties shall, as appropriate, shall cooperate in good faith and take all reasonable actions to provide for any appropriate joinder or change in named parties to such Mixed Actions such that the appropriate Party or member of each Party or such Party’s Group is party thereto. The Parties shall reasonably cooperate and consult with each otherother and, and to the extent permissible and necessary or advisable, maintain a joint defense in a manner that would preserve for both Parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to any Mixed Action. The Party managing a Mixed Action shall, on a quarterly basis, or if a material development occurs as soon as reasonably practicable thereafter, inform the other Party of the status of and developments relating to such Mixed Action and provide copies of any material documents, notices or other materials related to such Mixed Action; provided that the failure to provide any such documents, notices or other materials shall not be a basis for liability of a Party managing such Mixed Action except and solely to the extent that the other Party shall have been actually prejudiced thereby. Notwithstanding anything to the contrary herein, and except as set forth in Schedule XIX, the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by the Parties unless otherwise agreed by the Parties) or retain separate counsel (in which case each Party will bear the cost of its separate counsel) with respect to any Mixed Action; provided that the Parties shall bear their own share discovery costs and shall share equally other joint litigation costscosts in proportion to their respective expected financial exposure or respective expected financial recovery, as applicable. In any Mixed Action, each of Exelon the SITC Group and Constellation the CURB Group may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the Exelon SITC Business or the Constellation CURB Business, respectively; provided that each Party shall in good faith make commercially reasonable commercial efforts to avoid adverse effects on the other Party. (d) No Party managing a Mixed Action (the “Managing Party”) pursuant to Section 4.11(c) shall consent to entry of any judgment or enter into any settlement of any such Action without the prior written consent of the other Party (the “Non-Managing Party”), not to be unreasonably withheld, conditioned or delayed; provided, however, that such Non-Managing Party shall be required to consent to such entry of judgment or to such settlement that the Managing Party may recommend if the judgment or settlement: (i) contains no finding or admission of any violation of Law or any violation of the rights of the Non-Managing Party and its applicable related Persons and otherwise contains no admission of any liability of the Non-Managing Party and such related Persons; (ii) involves only monetary relief which the Managing Party has agreed to pay; and (iii) includes a full and unconditional release of the Non-Managing Party and its applicable related Persons. Notwithstanding the foregoing, in no event shall a Non-Managing Party be required to consent to an entry of judgment or settlement if the effect thereof is to permit any injunction, declaratory judgment or other non-monetary relief to be entered, directly or indirectly, against any member of the Non-Managing Party’s Group (other than any such injunctive or other non-monetary relief that is immaterial and solely incidental to the granting of money damages). (e) To the maximum extent permitted by applicable Law, the rights to recovery of each Party’s Subsidiaries in respect of any past, present or future Action are hereby delegated to such Party. It is the intent of the Parties that the foregoing delegation shall satisfy any Law requiring such delegation to be effected pursuant to a power of attorney or similar instrument. The Parties and the other members of their respective Subsidiaries Group shall execute such further instruments or documents as may be necessary to effect such delegation.