Common use of Management of Mixed Actions Clause in Contracts

Management of Mixed Actions. From and after the Effective Time, the Parties shall jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions set forth on Schedule 4.12(c) (except as otherwise set forth therein) and (ii) any other Action that constitutes both a SpinCo Liability and a YUM Liability (clauses (i) and (ii), the “Mixed Actions”). The Parties shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUM, SpinCo and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. Notwithstanding anything to the contrary herein, the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by YUM, on the one hand, and the SpinCo Parties, on the other hand) 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 YUM, on the one hand, and the SpinCo Parties, on the other hand, shall share equally discovery and other joint litigation costs. In any Mixed Action, each of YUM and the SpinCo Parties may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM Business or the SpinCo Business, respectively; provided that each Party shall in good faith make all reasonable efforts to avoid adverse effects on any other Party. Notwithstanding anything to the contrary herein, (i) if a judgment is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM Business and the SpinCo Business, and otherwise shall share equally such Liabilities; and (ii) if a recovery is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall share equally such Assets. A Party (or another member of its Group) that is not named as a defendant in a Mixed Action may elect to become a Party to such Mixed Action, and the Party (or other member of its Group) named in such Mixed Action shall reasonably cooperate to have such first Party (or other member of its Group) named in such Mixed Action.

Management of Mixed Actions. From and after the Effective Distribution Time, the Parties shall jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions any Action set forth on Schedule 4.12(c) (except as otherwise set forth therein6.11(d) and (ii) any other Action that constitutes both a SpinCo Seattle Liability or a Seattle Asset, on the one hand, and an Excluded Liability or an Excluded Asset, on the other hand and that do not constitute a YUM Liability Seattle Controlled Action, Houston Controlled Action or a Separate Action (clauses (i) and (ii), the “Mixed ActionsAction”) shall be managed by the Party with the greater financial exposure with respect thereto (taking into account the provisions of this Article VI), as determined in good faith by the Parties; provided that any outside counsel employed by a Party managing the Action with respect thereto shall be subject to the approval of other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, further, that if the Action involves the pursuit of any criminal sanctions or penalties or seeks equitable or injunctive relief against any Party or Subsidiary of a Party, that Party shall be entitled to control the defense of the claim against such Party. The Parties shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUM, SpinCo both Parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. The Party managing such 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 any Mixed Action and provide copies of any material document, notices or other materials related to such Mixed Action; provided that the failure to provide any such information shall not be a basis for liability of a Party managing such Mixed Action except and solely to the extent the other Party shall have been actually prejudiced thereby. Notwithstanding anything to the contrary herein, the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by YUM, on the one hand, and the SpinCo Parties, on the other hand) 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 YUM, on the one hand, and the SpinCo Parties, on the other hand, Parties shall share equally discovery and other joint litigation costscosts in proportion to their respective expected financial exposure (in the case of Actions that constitute both a Seattle Liability and an Excluded Liability) or respective expected financial recovery (in the case of Actions that constitute both a Seattle Asset and an Excluded Asset). In any Mixed Action, each of YUM Houston and the SpinCo Parties Seattle may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM Houston Business or the SpinCo Seattle Business, respectively; provided that each Party shall in good faith make all reasonable efforts to avoid adverse effects on any the other Party. Notwithstanding anything to the contrary herein, (iA) if a judgment is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM proportion of such Liabilities attributable to the Houston Business and the SpinCo Seattle Business, and otherwise shall share equally such Liabilities; and (iiB) if a recovery is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall share equally such Assets. A Party (or another member of its Group) that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) named in such Mixed Action shall reasonably cooperate to have such first Party (or other member of its Group) named in such Mixed Action.

Management of Mixed Actions. From and after the Effective Distribution Time, the Parties shall jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions any Action set forth on Schedule 4.12(c) (except as otherwise set forth thereinSection 6.10(d) and (ii) any other Action that constitutes both a SpinCo Liability or a SpinCo Asset, on the one hand, and an Excluded Liability or an Excluded Asset, on the other hand and that do not constitute a YUM Liability SpinCo Controlled Action nor a Moon Controlled Action (clauses (i) and (ii), the “Mixed ActionsAction”) shall be managed by the Party with the greater financial exposure with respect thereto (taking into account the provisions of this Article VI), as determined in good faith by the Parties; provided that any outside counsel employed by a Party managing the Action with respect thereto shall be subject to the approval of other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, further, that if the Action involves the pursuit of any criminal sanctions or penalties or seeks equitable or injunctive relief against only a Party or Subsidiary of such Party, that Party shall be entitled to control the defense of the applicable claims against such Party. Notwithstanding the preceding sentence, if, despite one Party having a greater financial exposure in respect of a Mixed Action, the other Party reasonably considers that such Mixed Action will be materially detrimental to its competitive or commercial business prospects and wishes to manage such Action, the first Party with the greater financial exposure shall consider in good faith the other Party’s request for the second mentioned Party to manage such Mixed Action. The Parties shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUM, SpinCo both Parties and their respective Affiliates any attorney-client privilege, attorney work-product protection, joint defense or other privilege with respect to Mixed Actions. The Party managing such 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 any Mixed Action and provide copies of any material document, notices or other materials related to such Mixed Action; provided that the failure to provide any such Information shall not be a basis for liability of a Party managing such Mixed Action except and solely to the extent the other Party shall have been actually prejudiced thereby. Notwithstanding anything to the contrary herein, the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by YUM, on the one hand, and the SpinCo Parties, on the other hand) 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 YUM, on the one hand, and the SpinCo Parties, on the other hand, Parties shall share equally discovery and other joint litigation costscosts in proportion to their respective expected financial exposure (in the case of Actions that constitute both a SpinCo Liability and an Excluded Liability) or respective expected financial recovery (in the case of Actions that constitute both a SpinCo Asset and an Excluded Asset). In any Mixed Action, each of YUM Moon and the SpinCo Parties may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM Moon Business or the SpinCo Business, respectively; provided that each Party shall in good faith make all reasonable efforts to avoid adverse effects on any the other Party. Notwithstanding anything to the contrary herein, (iA) if a an adverse judgment is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM proportion of such Liabilities attributable to the Moon Business and the SpinCo Business, and otherwise shall share equally such Liabilities; and (iiB) if a recovery is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall share equally such Assets. A Party (or another member of its Group) that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) named in such Mixed Action shall reasonably cooperate to have such first Party (or other member of its Group) named in such Mixed Action.

Management of Mixed Actions. From and after the Effective TimeClosing, the Parties shall jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions any Action set forth on Schedule 4.12(c) (except as otherwise set forth therein5.9(d) and (ii) any other Action that constitutes both a SpinCo TS Liability or a TS Asset, on the one hand, and an Excluded Liability or an Excluded Asset, on the other hand and that do not constitute a YUM Liability NewCo Controlled Action, Seller Controlled Action or a Separate Action (clauses (i) and (ii), the “Mixed ActionsAction”); 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 any outside counsel employed by a Party managing the Action with respect thereto shall be subject to the approval of the other Party (not to be unreasonably withheld); provided further, that if the Action involves the pursuit of any criminal sanctions or penalties or seeks equitable or injunctive relief against any Party or Subsidiary of a Party, that Party shall be entitled to control the defense of the claim against such Party. The Parties shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUM, SpinCo both Parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. The Party managing such 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 any Mixed Action and provide copies of any material document, notices or other materials related to such Mixed Action; provided that the failure to provide any such information shall not be a basis for liability of a Party managing such Mixed Action except and solely to the extent the other Party shall have been actually prejudiced thereby. Notwithstanding anything to the contrary herein, the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by YUM, on the one hand, and the SpinCo Parties, on the other hand) 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 YUM, on the one hand, and the SpinCo Parties, on the other hand, Parties shall share equally discovery and other joint litigation costscosts in proportion to their respective expected financial exposure (in the case of Actions that constitute both a TS Liability and an Excluded Liability) or respective expected financial recovery (in the case of Actions that constitute both a TS Asset and an Excluded Asset). In any Mixed Action, each of YUM Seller and the SpinCo Parties NewCos may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM Retained Business or the SpinCo TS Business, respectively; provided that each Party shall in good faith make all reasonable efforts to avoid adverse effects on any the other Party. Notwithstanding anything to the contrary herein, (iA) if a judgment is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM proportion of such Liabilities attributable to the Retained Business and the SpinCo TS Business, and otherwise shall share equally such Liabilities; and (iiB) if a recovery is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall share equally such Assets. A Party (or another member of its Group) that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) named in such Mixed Action shall reasonably cooperate to have such first Party (or other member of its Group) named in such Mixed Action.

Management of Mixed Actions. From and after the Effective Time, the Parties parties shall jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions set forth on Schedule 4.12(c6.11(c) (except as otherwise set forth therein) and (ii) any other Action Actions that constitutes both a SpinCo an Enterprise Liability or an Enterprise Asset, on the one hand, and a YUM an HPI Liability or an HPI Asset, on the other hand (clauses (i) and (ii), the “Mixed Actions”). The Parties parties shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUM, SpinCo both parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. Notwithstanding anything to the contrary herein, and except as set forth in Schedule 6.11(c), the Parties parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by YUM, on the one hand, and the SpinCo Parties, on the other handparties) or retain separate counsel (in which case each Party party will bear the cost of its separate counsel) with respect to any Mixed Action; provided that YUM, on the one hand, and the SpinCo Parties, on the other hand, parties shall share equally discovery and other joint litigation costs. In any Mixed Action, each of YUM HP and the SpinCo Parties Enterprise may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM HPI Business or the SpinCo Enterprise Business, respectively; provided that each Party party shall in good faith make all reasonable efforts to avoid adverse effects on any the other Partyparty. Notwithstanding anything to the contrary herein, (i) if a judgment is obtained with respect to a Mixed Action, the Parties parties shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM HPI Business and the SpinCo Enterprise Business, and otherwise shall share equally such Liabilities; and (ii) if a recovery is obtained with respect to a Mixed Action, the Parties parties shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall share equally such Assets. A Party (or another member of its Group) party that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) party named in such Mixed Action shall reasonably cooperate to have such first Party (or other member of its Group) party named in such Mixed Action.

Management of Mixed Actions. From and after the Effective Time, the Parties shall will jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions set forth on Schedule 4.12(c4.11(c) (except as otherwise set forth therein), (ii) any other Action that constitutes both a SpinCo Asset and a CES Asset and (iiiii) any other Action that constitutes both a SpinCo Liability and a YUM CES Liability (clauses (i), (ii) and (iiiii), the “Mixed Actions”). The Parties shall will reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUMVSI, SpinCo and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. Notwithstanding anything to the contrary herein, the Parties may jointly retain counsel (in which case the cost of counsel shall will be shared equally by YUMVSI, on the one hand, and the SpinCo PartiesSpinCo, on the other hand, unless otherwise agreed to 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 YUMthat, unless otherwise provided herein or otherwise agreed to by the Parties, VSI, on the one hand, and the SpinCo PartiesSpinCo, on the other hand, shall will share equally discovery and other joint litigation costs. In any Mixed Action, each of YUM VSI and the SpinCo Parties may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM CES Business or the SpinCo Business, respectively; provided that each Party shall will in good faith make all reasonable efforts to avoid adverse effects on any the other Party. Notwithstanding anything to the contrary herein, unless otherwise provided on Schedule 4.11(c), (i) if a judgment is obtained with respect to a Mixed Action, the Parties shall will endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM CES Business and the SpinCo Business, and otherwise shall will share equally such Liabilities; and (ii) if a recovery is obtained with respect to a Mixed Action, the Parties shall will endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall will share equally such Assets. A Party (or another member of its Group) that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) named in such Mixed Action shall will reasonably cooperate to have such first Party (or other member of its Group) named in such Mixed Action.

Management of Mixed Actions. From and after the Effective Time, the Parties parties shall jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions set forth on Schedule 4.12(c) (except as otherwise set forth therein6.11(c) and (ii) any other Action Actions arising after the Effective Time that constitutes both a SpinCo an Enterprise Liability or an Enterprise Asset, on the one hand, and a YUM an HPI Liability or an HPI Asset, on the other hand (clauses (i) and (ii), the “Mixed Actions”). The Parties parties shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUM, SpinCo both parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. Notwithstanding anything to the contrary herein, and except as set forth in Schedule 6.11(c), the Parties parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by YUM, on the one hand, and the SpinCo Parties, on the other handparties) or retain separate counsel (in which case each Party party will bear the cost of its separate counsel) with respect to any Mixed Action; provided that YUM, on the one hand, and the SpinCo Parties, on the other hand, parties shall share equally discovery and other joint litigation costs. In any Mixed Action, each of YUM HP and the SpinCo Parties Enterprise may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM HPI Business or the SpinCo Enterprise Business, respectively; provided that each Party party shall in good faith make all reasonable efforts to avoid adverse effects on any the other Partyparty. Notwithstanding anything to the contrary herein, (i) if a judgment is obtained with respect to a Mixed Action, the Parties parties shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM HPI Business and the SpinCo Enterprise Business, and otherwise shall share equally such Liabilities; and (ii) if a recovery is obtained with respect to a Mixed Action, the Parties parties shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall share equally such Assets. A Party (or another member of its Group) party that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) party named in such Mixed Action shall reasonably cooperate to have such first Party (or other member of its Group) party named in such Mixed Action.

Management of Mixed Actions. From and after the Effective Distribution Time, the Parties shall jointly manage (whether as co-defendants or co-plaintiffs) any Action that constitutes both (i) Actions set forth a SpinCo Liability or a SpinCo Asset, on Schedule 4.12(c) (except as otherwise set forth therein) the one hand, and (ii) any an Excluded Liability or an Excluded Asset, on the other Action hand, and that constitutes both do not constitute a SpinCo Liability and Controlled Action nor a YUM Liability Company Controlled Action (clauses (i) and (ii), the “Mixed ActionsAction”) 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 any outside counsel employed by a Party managing the Action with respect thereto shall be subject to the approval of other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, further, that if the Action involves the pursuit of any criminal sanctions or penalties or seeks equitable or injunctive relief against only a Party or Subsidiary of such Party, that Party shall be entitled to control the defense of the applicable claims against such Party. Notwithstanding the preceding sentence, if, despite one Party having a greater financial exposure in respect of a Mixed Action, the other Party reasonably considers that such Mixed Action will be materially detrimental to its competitive or commercial business prospects and wishes to manage such Action, the first Party with the greater financial exposure shall consider in good faith the other Party’s request for the second mentioned Party to manage such Mixed Action. The Parties shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUM, SpinCo both Parties and their respective Affiliates any attorney-client privilege, attorney work-product protection, joint defense or other privilege with respect to Mixed Actions. The Party managing such 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 any Mixed Action and provide copies of any material document, notices or other materials related to such Mixed Action; provided that the failure to provide any such information shall not be a basis for liability of a Party managing such Mixed Action except and solely to the extent the other Party shall have been actually prejudiced thereby. Notwithstanding anything to the contrary herein, the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by YUM, on the one hand, and the SpinCo Parties, on the other hand) 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 YUM, on the one hand, and the SpinCo Parties, on the other hand, Parties shall share equally discovery and other joint litigation costscosts in proportion to their respective expected financial exposure (in the case of Actions that constitute both a SpinCo Liability and an Excluded Liability) or respective expected financial recovery (in the case of Actions that constitute both a SpinCo Asset and an Excluded Asset). In any Mixed Action, each of YUM the Company and the SpinCo Parties may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM Acquired Business or the SpinCo Business, respectively; provided that each Party shall in good faith make all reasonable efforts to avoid adverse effects on any the other Party. Notwithstanding anything to the contrary herein, (iA) if a an adverse judgment is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM proportion of such Liabilities attributable to the Acquired Business and the SpinCo Business, and otherwise shall share equally such Liabilities; and (iiB) if a recovery is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall share equally such Assets. A Party (or another member of its Group) that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) named in such Mixed Action shall reasonably cooperate to have such first Party (or other member of its Group) named in such Mixed Action.

Management of Mixed Actions. From and after the Effective Distribution Time, the Parties shall jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions set forth on Schedule 4.12(c) (except as otherwise set forth therein) and (ii) any other Action that constitutes both a SpinCo Liability, a SpinCo Asset or a Separately Conveyed Asset, on the one hand, and an Excluded Liability or an Excluded Asset, on the other hand and that do not constitute a YUM Liability SpinCo Controlled Action, Company Controlled Action or a Separate Action (clauses (i) and (ii), the “Mixed ActionsAction”) shall be managed by the Party with the greater financial exposure with respect thereto (taking into account the provisions of this Article VI), as determined in good faith by the Company and SpinCo; provided that any outside counsel employed by a Party managing the Action with respect thereto shall be subject to the approval of the other Party (such approval not to be unreasonably withheld, conditioned or delayed); provided, further, that if the Action involves the pursuit of any criminal sanctions or penalties or seeks equitable or injunctive relief against any Party or Subsidiary of a Party, that Party shall be entitled to control the defense of the claim against such Party. The Parties Company and SpinCo shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUM, the Company and SpinCo and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. The Party managing such 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 any Mixed Action and provide copies of any material document, notices or other materials related to such Mixed Action; provided that the failure to provide any such information shall not be a basis for liability of a Party managing such Mixed Action except and solely to the extent the other Party shall have been actually prejudiced thereby. Notwithstanding anything to the contrary herein, the Parties Company and SpinCo may jointly retain counsel (in which case the cost of counsel shall be shared equally by YUM, on the one hand, Company and the SpinCo Parties, on the other handSpinCo) 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 YUMthe Company and SpinCo shall share discovery and other joint litigation costs in proportion to their respective expected financial exposure (in the case of Actions that constitute both a SpinCo Liability and an Excluded Liability) or respective expected financial recovery (in the case of Actions that constitute both a SpinCo Asset or a Separately Conveyed Asset, on the one hand, and the SpinCo Partiesan Excluded Asset, on the other hand, shall share equally discovery and other joint litigation costs). In any Mixed Action, each of YUM the Company and the SpinCo Parties may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM Company Business or the SpinCo Business, respectively; provided that each Party shall in good faith make all reasonable efforts to avoid adverse effects on any the other Party. Notwithstanding anything to the contrary herein, (iA) if a judgment is obtained with respect to a Mixed Action, the Parties Company and SpinCo shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM proportion of such Liabilities attributable to the Company Business and the SpinCo Business, and otherwise shall share equally such Liabilities; and (iiB) if a recovery is obtained with respect to a Mixed Action, the Parties Company and SpinCo shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall share equally such Assets. A Party (or another member of its Group) that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) named in such Mixed Action shall reasonably cooperate to have such first Party (or other member of its Group) named in such Mixed Action.

Management of Mixed Actions. From and after the Effective Time, the Parties shall will jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions set forth on Schedule 4.12(c) (except as otherwise set forth therein) any other Action that constitutes both a SpinCo Liability and a RemainCo Liability and (ii) any other Action that constitutes both a SpinCo Liability Asset and a YUM Liability RemainCo Asset (clauses (i) and to (ii), the “Mixed Actions”). The Parties shall will reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUMParent, SpinCo and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. Notwithstanding anything to the contrary herein, the Parties may jointly retain counsel (in which case the cost of counsel shall will be shared equally by YUMParent, on the one hand, and the SpinCo PartiesSpinCo, on the other hand) 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 YUMParent, on the one hand, and the SpinCo PartiesSpinCo, on the other hand, shall will share equally discovery and other joint litigation costs. In any Mixed Action, each of YUM Parent and the SpinCo Parties may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM RemainCo Business or the SpinCo Business, respectively; provided that each Party shall will in good faith make all reasonable efforts to avoid adverse effects on any the other Party. Notwithstanding anything to the contrary herein, (i) if a judgment is obtained with respect to a Mixed Action, the Parties shall will endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM RemainCo Business and the SpinCo Business, and otherwise shall will share equally such Liabilities; and (ii) if a recovery is obtained with respect to a Mixed Action, the Parties shall will endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall will share equally such Assets. A Party (or another member of its Group) that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) named in such Mixed Action shall will reasonably cooperate to have such first Party (or other member of its Group) named in such Mixed Action.

Management of Mixed Actions. From and after the Effective Distribution Time, the Parties shall jointly manage (whether as co-defendants or co-plaintiffs) any (i) Actions any Action set forth on Schedule 4.12(c) (except as otherwise set forth therein6.11(d) and (ii) any other Action that constitutes both an Everett Liability or an Everett Asset, on the one hand, and an Excluded Liability or an Excluded Asset, on the other hand and that do not constitute an Everett Controlled Action, Houston Controlled Action or a SpinCo Liability and a YUM Liability Separate Action (clauses (i) and (ii), the “Mixed ActionsAction”); shall be managed by the Party with the greater financial exposure with respect thereto (taking into account the provisions of this Article VI), as determined in good faith by the Parties; provided that any outside counsel employed by a Party managing the Action with respect thereto shall be subject to the approval of other Party (not to be unreasonably withheld); provided further, that if the Action involves the pursuit of any criminal sanctions or penalties or seeks equitable or injunctive relief against any Party or Subsidiary of a Party, that Party shall be entitled to control the defense of the claim against such Party. The Parties shall reasonably cooperate and consult with each other, and to the extent necessary or advisable, maintain a joint defense in a manner that would preserve for YUM, SpinCo both Parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect to Mixed Actions. The Party managing such 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 any Mixed Action and provide copies of any material document, notices or other materials related to such Mixed Action; provided that the failure to provide any such information shall not be a basis for liability of a Party managing such Mixed Action except and solely to the extent the other Party shall have been actually prejudiced thereby. Notwithstanding anything to the contrary herein, and the Parties may jointly retain counsel (in which case the cost of counsel shall be shared equally by YUM, on the one hand, and the SpinCo Parties, on the other hand) 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 YUM, on the one hand, and the SpinCo Parties, on the other hand, Parties shall share equally discovery and other joint litigation costscosts in proportion to their respective expected financial exposure (in the case of Actions that constitute both an Everett Liability and an Excluded Liability) or respective expected financial recovery (in the case of Actions that constitute both an Everett Asset and an Excluded Asset). In any Mixed Action, each of YUM Houston and the SpinCo Parties Everett may pursue separate defenses, claims, counterclaims or settlements to those claims relating to the YUM Houston Business or the SpinCo Everett Business, respectively; provided that each Party shall in good faith make all reasonable efforts to avoid adverse effects on any the other Party. Notwithstanding anything to the contrary herein, (iA) if a judgment is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Liabilities in respect of such judgment between them based on the YUM proportion of such Liabilities attributable to the Houston Business and the SpinCo Everett Business, and otherwise shall share equally such Liabilities; and (iiB) if a recovery is obtained with respect to a Mixed Action, the Parties shall endeavor in good faith to allocate the Assets in respect of such recovery between them based on their respective injuries, and otherwise shall share equally such Assets. A Party (or another member of its Group) that is not named as a defendant in a Mixed Action may elect to become a Party party to such Mixed Action, and the Party (or other member of its Group) named in such Mixed Action shall reasonably cooperate to have such first Party (or other member of its Group) named in such Mixed Action.