Common use of Retained Litigation Clause in Contracts

Retained Litigation. The following shall apply with respect to the Retained Litigation: (a) With respect to the Retained Litigation, the Parties acknowledge and agree that Sellers have an obligation to indemnify each Buyer Indemnified Party and hold it harmless against and in respect of any and all Losses which arise out of the Retained Litigation and that Sellers have exercised their right to assume the entire control of the defense thereof. In connection therewith, the Company has engaged the law firms set forth on Schedule 7.9 to defend the Company with respect to the Retained Litigation, and, except as otherwise agreed by the Company and Equity Seller, such counsel shall continue to represent the Company in that regard. For avoidance of doubt the fees, costs and expenses of such counsel shall be Losses arising from the Retained Litigation and such Losses shall be borne directly by Sellers. To the extent the Company pays any Losses with respect to the Retained Litigation, Sellers shall promptly reimburse the Company for such Losses except to the extent such Losses are paid directly by the applicable insurance carrier. To the extent a potential conflict of interest may exist, the Buyer Indemnified Parties agree to waive that conflict and, if requested by Sellers, to execute a joint representation agreement in which the Buyer Indemnified Parties agree to waive any actual or perceived conflicts of interest. Buyers acknowledge and agree that Sellers shall have the right to direct the defense of the Retained Litigation in accordance with Section 7.3. (b) In furtherance of, and not in limitation of, the Buyer Indemnified Parties’ obligations under Section 7.3 with respect to the Retained Litigation, Buyers shall cause the Company to cooperate reasonably with the appointed counsel and Sellers in connection with the defense of the Retained Litigation, including without limitation (i) making available all pertinent information as such counsel or Sellers, its representatives or other parties in discovery may reasonably request, and (ii) requiring the reasonable cooperation of the Company’s officers, employees, and other agents, including in providing documentation, affidavits, depositions or other testimony in connection with the Retained Litigation. Sellers acknowledge and agree that any refusal by any Person (other than the Company and its Affiliates) to cooperate with Sellers with regard to the conduct of the defense of the Retained Litigation shall not limit Sellers’ indemnification obligations pursuant to Section 7.1(c) herein.

Retained Litigation. The following (a) From and after the Closing, Seller shall apply indemnify and hold the Buyer Indemnified Parties harmless from and against any costs or expenses (except internal administrative expenses, including employee salaries) of the Acquired Companies or Related Consolidated Entities incurred to defend or settle the Retained Litigation, or satisfy any judgment against Buyer or its Affiliates in connection therewith; provided, that: (i) Seller shall, subject to Section 5.13(b), retain sole control over the defense or settlement of the Retained Litigation; (ii) Buyer, on behalf of itself and its Affiliates (A) agrees that it shall not take, and shall cause its Affiliates not to take, any action without Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) to obtain indemnification for the Retained Litigation from another source, and (B) shall pay to Seller any proceeds Buyer or its Affiliates, including the Acquired Companies or Related Consolidated Entities, may receive as indemnification for any Retained Litigation from another source (provided that Seller has otherwise indemnified and held harmless the Buyer Indemnified Parties as contemplated by this Section 5.13(a)) and (iii) Buyer and its Affiliates shall provide Seller with reasonable cooperation in the defense, investigation, or settlement of the Retained Litigation, including, using commercially reasonable efforts in providing data, testimony or documents at Seller’s reasonable request and expense (not including Buyer’s internal administrative expenses, including employee salaries). For the avoidance of doubt and notwithstanding anything contained herein to the contrary, all rights with respect to the Retained Litigation: (a) With respect Indemnification Assets and any corresponding direct claims against the former direct and indirect owners of the Business shall remain the rights of Seller and its Affiliates and shall not be affected in any manner by this Agreement. Prior to the Retained LitigationClosing, the Parties acknowledge and hereby agree that Sellers have an obligation to indemnify each Buyer Indemnified Party and hold it harmless against and enter into a joint defense agreement in respect of any and all Losses which arise out of the Retained Litigation and that Sellers have exercised their right to assume the entire control of the defense thereof. In connection therewith, the Company has engaged the law firms set forth on Schedule 7.9 to defend the Company with respect a form reasonably satisfactory to the Retained Litigation, and, except as otherwise agreed by the Company and Equity Seller, such counsel Parties. Seller shall continue use commercially reasonable efforts to represent the Company in that regard. For avoidance avoid Buyer’s production of doubt the fees, costs and expenses of such counsel shall be Losses arising from the Retained Litigation and such Losses shall be borne directly by Sellers. To the extent the Company pays any Losses with respect to the Retained Litigation, Sellers shall promptly reimburse the Company for such Losses except to the extent such Losses are paid directly by the applicable insurance carrier. To the extent confidential information without a potential conflict of interest may exist, the Buyer Indemnified Parties agree to waive that conflict and, if requested by Sellers, to execute a joint representation agreement in which the Buyer Indemnified Parties agree to waive any actual or perceived conflicts of interest. Buyers acknowledge and agree that Sellers shall have the right to direct the defense of the Retained Litigation in accordance with Section 7.3protective order. (b) In furtherance ofNotwithstanding Section 5.13(a), and not in limitation of, no settlement of any Retained Litigation that includes a non-monetary component applicable to the Buyer Indemnified Parties’ obligations under Section 7.3 Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to the Retained Litigation, Buyers shall cause the Company to cooperate reasonably with the appointed counsel and Sellers in connection with the defense of the Retained Litigation, including without limitation (i) making available all pertinent information as such counsel or Sellers, its representatives or other parties in discovery may reasonably request, and (ii) requiring the reasonable cooperation of the Company’s officers, employees, and other agents, including in providing documentation, affidavits, depositions or other testimony in connection with the Retained Litigation. Sellers acknowledge and agree that any refusal by any Person (other than the Company and its Affiliates) to cooperate with Sellers with regard to the conduct of the defense of the certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall not limit Sellers’ indemnification obligations pursuant to Section 7.1(c) hereingovern.

Retained Litigation. The following shall apply with respect to the Retained Litigation: (a) With respect From and after the Closing, Seller shall retain full control and responsibility for the defense, negotiation or settlement of, and any other action or decision relating to the Actions pending against Seller, Subsidiaries of Seller and/or ICX in relation to the Business that are listed in Section 5.15(a) of the Seller Disclosure Schedule (collectively, the “Retained Litigation”). The Retained Litigation includes the “Picturemail Retained Litigation”, the “MDG Retained Litigation” and the “Other Retained Litigation”, in each case as specified on Section 5.15(a) of such Schedule, and, immediately prior to the Closing, Seller shall deliver to Purchaser a supplement to Section 5.15(a) of the Seller Disclosure Schedule adding any Actions commenced after the date hereof that included claims substantially similar to the claims in such Actions that have been commenced prior to the date hereof (and “Retained Litigation” shall be deemed to include any such additional Actions). Notwithstanding the foregoing (or other provision of this Agreement), Seller shall not settle any Retained Litigation without Purchaser’s prior written consent (which consent shall not be unreasonably withheld or delayed) unless the relief provided by such settlement would not (i) impose any material obligations or restrictions on the Business or (ii), in the case the MDG Retained Litigation and Other Retained Litigation, impose any Loss on Purchaser or the Parties acknowledge and agree Business after the Closing Date that Sellers have an obligation to indemnify each Buyer Indemnified Party and hold it harmless against and is not indemnifiable by Seller under Section 10.01(a) or (iii), in respect of any and all Losses which arise out the case of the Retained Litigation and that Sellers have exercised their right to assume the entire control of the defense thereof. In connection therewith, the Company has engaged the law firms set forth on Schedule 7.9 to defend the Company with respect to the Picturemail Retained Litigation, andimpose any Loss on Purchaser or the Business after the Closing Date in excess of the amount set forth in Section 10.01(b)(v) that is not indemnifiable by Seller under Section 10.01(a). For the purposes of determining the indemnification obligations of Seller and Purchaser under Section 10.01(a)(vi) and Section 10.01(b)(v), except as otherwise agreed by respectively, Seller shall make a reasonable allocation between the Company pre-Closing and Equity Seller, such post-Closing periods of any Loss arising from any settlement of the Picturemail Retained Litigation. Purchaser may at any time elect to retain separate counsel shall continue of its choice to represent the Company Purchaser and/or any of its Subsidiaries, including ICX, in that regard. For avoidance of doubt connection with any Retained Litigation, and Purchaser shall pay the fees, costs charges and expenses disbursements of such counsel shall be Losses arising from the Retained Litigation and such Losses shall be borne directly by Sellers. To the extent the Company pays any Losses with respect to the Retained Litigation, Sellers shall promptly reimburse the Company for such Losses except to the extent such Losses are paid directly by the applicable insurance carrier. To the extent a potential conflict of interest may exist, the Buyer Indemnified Parties agree to waive counsel; provided that conflict and, if requested by Sellers, to execute a joint representation agreement in which the Buyer Indemnified Parties agree to waive any actual or perceived conflicts of interest. Buyers acknowledge and agree that Sellers (i) Seller shall have the right to direct approve the identity of such counsel, such approval not to be unreasonably withheld or delayed, and (ii) such counsel shall have a passive and advisory role only and shall not have the right to control any aspect of the defense or counterclaim (if any) in respect of the any Retained Litigation in accordance with Section 7.3Litigation. (b) In furtherance ofaddition, and not in limitation of, the Buyer Indemnified Parties’ without prejudice to Purchaser’s obligations under Section 7.3 with respect to the Retained Litigation5.08(b) and Section 5.10, Buyers Purchaser shall, and shall cause the Company its Affiliates, including ICX, subject to reimbursement of all out-of-pocket costs incurred by Purchaser and its Affiliates, to: (i) cooperate and/or provide assistance, as reasonably with the appointed counsel and Sellers requested by Seller, in connection with the defense defense, negotiation or settlement of any Retained Litigation; (ii) cooperate with Seller’s requests to modify the operation of the Picturemail Business as Seller may reasonably deem necessary or advisable to minimize potential liability under the Picturemail Retained Litigation, including without limitation provided that, for the avoidance of doubt, any unreimbursed Losses incurred by Purchaser as a result of doing so shall be taken into account for purposes of Section 10.01(a)(vi) and Section 10.01(b)(v); (iii) make available to Seller individuals that are employed by Purchaser and its Subsidiaries in a timely manner to provide testimony through declarations, affidavits, depositions, or at hearing or trial and to assist Seller in preparation for such events consistent with deadlines dictated by particular Retained Litigation; and (iv) provide Seller with such documents and data relating to the Business, consistent with deadlines dictated by a particular matter, as required by legal procedure or court order, or if reasonably requested by Seller, in relation to any Retained Litigation. (c) In the event that a final non-appealable judgment is entered in connection with any Picturemail Retained Litigation (a “Picturemail Judgment”) and such judgment restricts Purchaser or any Subsidiary of Purchaser from continuing to operate the Picturemail Business in substantially the manner that the Picturemail Business is operated on the date hereof, Seller shall, at its option and within ninety (90) days from entry of such judgment, either (i) making available all pertinent information as such counsel pay to Purchaser [***] or Sellers, its representatives or other parties in discovery may reasonably request, and (ii) requiring the reasonable cooperation of the Company’s officers, employees, and deliver to Purchaser a fully paid up transferable perpetual license (or such other agents, including in providing documentation, affidavits, depositions intellectual property rights) that would permit Purchaser (or other testimony in connection with the Retained Litigation. Sellers acknowledge and agree that any refusal by any Person (other than the Company and its Affiliatessuch Subsidiary) to cooperate with Sellers with regard continue to operate the conduct Business in such manner. Purchaser’s rights under this Section 5.15(c) shall be the sole and exclusive remedy of the defense any Purchaser Indemnified Person in respect of the Retained Litigation shall not limit Sellers’ indemnification obligations pursuant to Section 7.1(c) hereinLosses that arise out of any such restriction.

Retained Litigation. The following shall apply with respect to the Retained Litigation: (a) With respect The Buyer shall, and shall procure that, following the Closing, the Companies shall take such actions as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest (including making counterclaims or other claims against third parties) all or any proceedings which comprise the Retained Litigation, subject to the Parties acknowledge Buyer being paid all reasonable costs and expenses incurred by it and the Companies in complying with the Seller’s request; and provided, that the Buyer and the Companies shall not be required to agree to incur any liabilities, obligations or restrictions which restrict or impair the operation of the Business. The Buyer shall ensure that Sellers have an obligation no admissions in relation to indemnify each Buyer Indemnified Party and hold it harmless against and in respect Retained Litigation shall be made by or on behalf of any Company, and all Losses which arise out no part of the Retained Litigation and that Sellers have exercised their right to assume shall be compromised, disposed of or settled without the entire control prior written consent of the defense thereof. In connection therewith, the Company has engaged the law firms set forth on Schedule 7.9 to defend the Company with respect to the Retained Litigation, and, except as otherwise agreed by the Company and Equity Seller, such counsel shall continue to represent the Company in that regard. For avoidance of doubt the fees, costs and expenses of such counsel shall be Losses arising from the Retained Litigation and such Losses shall be borne directly by Sellers. To the extent the Company pays any Losses with respect to the Retained Litigation, Sellers shall promptly reimburse the Company for such Losses except to the extent such Losses are paid directly by the applicable insurance carrier. To the extent a potential conflict of interest may exist, the Buyer Indemnified Parties agree to waive that conflict and, if requested by Sellers, to execute a joint representation agreement in which the Buyer Indemnified Parties agree to waive any actual or perceived conflicts of interest. Buyers acknowledge and agree that Sellers shall have the right to direct the defense of the Retained Litigation in accordance with Section 7.3. (b) In furtherance ofThe Buyer shall, subject to its being promptly paid all reasonable costs and expenses incurred by it and the Companies, give or procure to be given by the Companies to the Seller or its duly authorized agents all such information and assistance, including access to premises and personnel, and not the right to examine and copy or photograph any assets, accounts, documents and records, in limitation ofeach case during normal business hours, as the Buyer Indemnified Parties’ obligations under Section 7.3 with respect to the Retained Litigation, Buyers shall cause the Company to cooperate reasonably with the appointed counsel and Sellers in connection with the defense of the Retained Litigation, including without limitation (i) making available all pertinent information as such counsel or Sellers, its representatives or other parties in discovery Seller may reasonably request, and (ii) requiring the reasonable cooperation of the Company’s officers, employees, and other agents, including in providing documentation, affidavits, depositions or other testimony request in connection with the Retained Litigation. Sellers acknowledge ; provided, that the Buyer shall not be required to provide such information and agree assistance to the extent that it unreasonably interferes with the ongoing operations of the Business or to the extent such disclosure is legally restricted. (c) The Buyer shall procure that any refusal amounts recovered by any Person Company (other than the Company and its Affiliateswhether by award of damages or costs, settlement, insurance or otherwise) as compensation or indemnification arising out of any claims to cooperate with Sellers with regard to the conduct of the defense of which the Retained Litigation relates shall not limit Sellers’ indemnification obligations pursuant be promptly paid to Section 7.1(c) hereinthe Seller.

Retained Litigation. The following shall apply (a) Following the Closing, Seller shall, at its own expense, (i) actively and diligently defend the Buyer Indemnified Parties (including, without limitation, Target Company) with respect to each Retained Litigation (regardless of whether such matter is set forth on Section 2.2.16 of the Seller Disclosure Schedule) by appropriate proceedings and (ii) have the sole power to direct and control such defense, with counsel of its choosing. Buyer Indemnified Parties shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of their own choosing and may participate in any such defense at their own expense. Notwithstanding the foregoing, if counsel for the Buyer Indemnified Parties reasonably determines that there is a conflict between the positions of Seller and the Buyer Indemnified Parties in conducting the defense of any such action or that there are legal defenses available to such Buyer Indemnified Parties different from or in addition to those available to Seller, then counsel for the Buyer Indemnified Parties shall be entitled, if the Buyer Indemnified Parties so elect, to conduct the defense to the extent reasonably determined by such counsel to protect the interests of the Buyer Indemnified Parties, at the expense of Seller. As soon as reasonably practicable, Seller shall provide the Buyer with an opportunity to review and comment upon (A) any written agreement to settle or compromise any Retained Litigation that Seller intends to submit to or enter into with an adverse party with respect to any Retained Litigation or (B) any offer to settle or compromise any Retained Litigation that Seller intends to submit to or receives from any adverse party with respect to any Retained Litigation. Seller shall consider in good faith (1) any comments provided in a timely fashion by the Buyer and (2) incorporating such comments into any such agreement or offer to settle or compromise any Retained Litigation; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed, settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (x) the imposition of a consent order, injunction or decree that would restrict in any significant respect the future activity or conduct of the Indemnified Party or any of its Affiliates, (y) a finding or admission by the Indemnified Party or any of its Affiliates of a violation of Applicable Law or a violation by the Indemnified Party or any of its Affiliates of the rights of any Person or (z) any monetary liability of the Indemnified Party that will not be paid or reimbursed in full by the Indemnifying Party within the time period for payment set by the proposed settlement. (b) If Seller fails to take reasonable steps necessary to defend diligently any of the Retained Litigation within 10 days after receiving written notice from the Buyer to the effect that Seller has so failed, specifically detailing such failure, the Indemnified Party shall have the right but not the obligation to assume the defense of such Retained Litigation at the expense of Seller; it being understood that the Buyer Indemnified Parties’ right to indemnification for such Retained Litigation shall not be adversely affected by assuming the defense of such Retained Litigation:. The Buyer Indemnified Parties shall not settle any Retained Litigation without the consent of Seller (which shall not be unreasonably withheld or delayed). (ac) With respect The Buyer Indemnified Parties and Seller shall cooperate in order to ensure the proper and adequate defense of the Retained Litigation, the Parties acknowledge including by providing access to each other’s relevant business records and agree that Sellers have an obligation to indemnify each other documents, and employees. (d) The Buyer Indemnified Party Parties and hold it harmless against Seller shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Retained Litigation to be made so as to preserve any applicable attorney client or work product privileges. (e) To the extent Target Company is entitled to reimbursement under an insurance policy covering the Retained Litigation of the attorney’s fees and expenses of Seller in respect of any and all Losses which arise out of the Retained Litigation and that Sellers have exercised their right to assume the entire control of the defense thereof. In connection therewith, the Company has engaged the law firms set forth on Schedule 7.9 to defend the Company with respect to the Retained Litigation, and, except as otherwise agreed by the Company Buyer shall assign and Equity Seller, transfer such counsel shall continue amounts to represent the Company in that regard. For avoidance of doubt the fees, costs and expenses of such counsel shall be Losses arising from the Retained Litigation and such Losses shall be borne directly by Sellers. To the extent the Company pays any Losses with respect to the Retained Litigation, Sellers shall promptly reimburse the Company for such Losses except to the extent such Losses are paid directly by the applicable insurance carrier. To the extent a potential conflict of interest may exist, Seller upon receipt thereof (unless the Buyer Indemnified Parties agree to waive that conflict and, if requested by Sellers, to execute a joint representation agreement in which Party is conducting and controlling the Buyer Indemnified Parties agree to waive any actual or perceived conflicts of interest. Buyers acknowledge settlements and agree that Sellers shall have the right to direct the defense of the Retained Litigation in accordance with Section 7.3. clause (b) In furtherance of, and not in limitation of, the Buyer Indemnified Parties’ obligations under Section 7.3 with respect to the Retained Litigation, Buyers shall cause the Company to cooperate reasonably with the appointed counsel and Sellers in connection with the defense of the Retained Litigation, including without limitation (i) making available all pertinent information as such counsel or Sellers, its representatives or other parties in discovery may reasonably request, and (ii) requiring the reasonable cooperation of the Company’s officers, employees, and other agents, including in providing documentation, affidavits, depositions or other testimony in connection with the Retained Litigation. Sellers acknowledge and agree that any refusal by any Person (other than the Company and its Affiliates) to cooperate with Sellers with regard to the conduct of the defense of the Retained Litigation shall not limit Sellers’ indemnification obligations pursuant to Section 7.1(c) hereinabove).

Retained Litigation. The following shall apply (a) Following the Closing, Seller shall, at its own expense, (i) actively and diligently defend the Buyer Indemnified Parties (including, without limitation, Target Company) with respect to each Retained Litigation (regardless of whether such matter is set forth on Section 2.2.16 of the Seller Disclosure Schedule) by appropriate proceedings and (ii) have the sole power to direct and control such defense, with counsel of its choosing. Buyer Indemnified Parties shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of their own choosing and may participate in any such defense at their own expense. Notwithstanding the foregoing, if counsel for the Buyer Indemnified Parties reasonably determines that there is a conflict between the positions of Seller and the Buyer Indemnified Parties in conducting the defense of any such action or that there are legal defenses available to such Buyer Indemnified Parties different from or in addition to those available to Seller, then counsel for the Buyer Indemnified Parties shall be entitled, if the Buyer Indemnified Parties so elect, to conduct the defense to the extent reasonably determined by such counsel to protect the interests of the Buyer Indemnified Parties, at the expense of Seller. As soon as reasonably practicable, Seller shall provide the Buyer with an opportunity to review and comment upon (A) any written agreement to settle or compromise any Retained Litigation that Seller intends to submit to or enter into with an adverse party with respect to any Retained Litigation or (B) any offer to settle or compromise any Retained Litigation that Seller intends to submit to or receives from any adverse party with respect to any Retained Litigation. Seller shall consider in good faith (1) any comments provided in a timely fashion by the Buyer and (2) incorporating such comments into any such agreement or offer to settle or compromise any Retained Litigation; provided, however, that the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed, settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (x) the imposition of a consent order, injunction or decree that would restrict in any significant respect the future activity or conduct of the Indemnified Party or any of its Affiliates, (y) a finding or admission by the Indemnified Party or any of its Affiliates of a violation of Applicable Law or a violation by the Indemnified Party or any of its Affiliates of the rights of any Person or (z) any monetary liability of the Indemnified Party that will not be paid or reimbursed in full by the Indemnifying Party within the time period for payment set by the proposed settlement. (b) If Seller fails to take reasonable steps necessary to defend diligently any of the Retained Litigation within 10 days after receiving written notice from the Buyer to the effect that Seller has so failed, specifically detailing such failure, the Indemnified Party shall have the right but not the obligation to assume the defense of such Retained Litigation at the expense of Seller; it being understood that the Buyer Indemnified Parties' right to indemnification for such Retained Litigation shall not be adversely affected by assuming the defense of such Retained Litigation:. The Buyer Indemnified Parties shall not settle any Retained Litigation without the consent of Seller (which shall not be unreasonably withheld or delayed). (ac) With respect The Buyer Indemnified Parties and Seller shall cooperate in order to ensure the proper and adequate defense of the Retained Litigation, the Parties acknowledge including by providing access to each other's relevant business records and agree that Sellers have an obligation to indemnify each other documents, and employees. (d) The Buyer Indemnified Party Parties and hold it harmless against Seller shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Retained Litigation to be made so as to preserve any applicable attorney client or work product privileges. (e) To the extent Target Company is entitled to reimbursement under an insurance policy covering the Retained Litigation of the attorney's fees and expenses of Seller in respect of any and all Losses which arise out of the Retained Litigation and that Sellers have exercised their right to assume the entire control of the defense thereof. In connection therewith, the Company has engaged the law firms set forth on Schedule 7.9 to defend the Company with respect to the Retained Litigation, and, except as otherwise agreed by the Company Buyer shall assign and Equity Seller, transfer such counsel shall continue amounts to represent the Company in that regard. For avoidance of doubt the fees, costs and expenses of such counsel shall be Losses arising from the Retained Litigation and such Losses shall be borne directly by Sellers. To the extent the Company pays any Losses with respect to the Retained Litigation, Sellers shall promptly reimburse the Company for such Losses except to the extent such Losses are paid directly by the applicable insurance carrier. To the extent a potential conflict of interest may exist, Seller upon receipt thereof (unless the Buyer Indemnified Parties agree to waive that conflict and, if requested by Sellers, to execute a joint representation agreement in which Party is conducting and controlling the Buyer Indemnified Parties agree to waive any actual or perceived conflicts of interest. Buyers acknowledge settlements and agree that Sellers shall have the right to direct the defense of the Retained Litigation in accordance with Section 7.3. clause (b) In furtherance of, and not in limitation of, the Buyer Indemnified Parties’ obligations under Section 7.3 with respect to the Retained Litigation, Buyers shall cause the Company to cooperate reasonably with the appointed counsel and Sellers in connection with the defense of the Retained Litigation, including without limitation (i) making available all pertinent information as such counsel or Sellers, its representatives or other parties in discovery may reasonably request, and (ii) requiring the reasonable cooperation of the Company’s officers, employees, and other agents, including in providing documentation, affidavits, depositions or other testimony in connection with the Retained Litigation. Sellers acknowledge and agree that any refusal by any Person (other than the Company and its Affiliates) to cooperate with Sellers with regard to the conduct of the defense of the Retained Litigation shall not limit Sellers’ indemnification obligations pursuant to Section 7.1(c) hereinabove).

Retained Litigation. The Notwithstanding anything contained in this Agreement to the contrary, the parties hereto agree that Seller, at its cost and expense, shall retain, and shall have the sole right to control, all claims and causes of action which have been asserted or may be asserted in the future by or on behalf of the Acquired Companies in the following shall apply captioned lawsuits and/or any other lawsuits which may be filed in the future with respect to the subject matter of such captioned lawsuits (hereinafter collectively referred to as the "Retained Litigation:"): (a) With respect to the Retained In re Linerboard Antitrust Litigation, the Parties acknowledge and agree that Sellers have an obligation to indemnify each Buyer Indemnified Party and hold it harmless against and in respect of any and all Losses which arise out of the Retained Litigation and that Sellers have exercised their right to assume the entire control of the defense thereofMDL Docket No. In connection therewith1261 (E.D. Pa.), the Company has engaged the law firms set forth on Schedule 7.9 to defend the Company with respect to the Retained Litigation, and, except as otherwise agreed by the Company and Equity Seller, such counsel shall continue to represent the Company in that regard. For avoidance of doubt the fees, costs and expenses of such counsel shall be Losses arising from the Retained Litigation and such Losses shall be borne directly by Sellers. To the extent the Company pays any Losses with respect to the Retained Litigation, Sellers shall promptly reimburse the Company for such Losses except to the extent such Losses are paid directly by the applicable insurance carrier. To the extent a potential conflict of interest may exist, the Buyer Indemnified Parties agree to waive that conflict and, if requested by Sellers, to execute a joint representation agreement in which the Buyer Indemnified Parties agree to waive any actual or perceived conflicts of interest. Buyers acknowledge and agree that Sellers shall have the right to direct the defense of the Retained Litigation in accordance with Section 7.3.-113- (b) In furtherance ofre Vitamins Antitrust Litigation (MDL No. 1285) Misc. 99-0197 (D.D.C.), and (c) Giral v. F-Hoffman LaRoche, Civil Action No. 00 XX 7000 (X.C. Sup. Ct.); including any appeals thereof. Seller shall be entitled to receive and not in limitation of, retain the Buyer Indemnified Parties’ obligations under Section 7.3 with respect to the Retained Litigation, Buyers shall cause the Company to cooperate reasonably with the appointed counsel and Sellers in connection with the defense benefits of the Retained Litigation, including without limitation (i) making available all pertinent information as such counsel any judgment awarded or Sellers, its representatives or other parties in discovery may reasonably request, and (ii) requiring the reasonable cooperation of the Company’s officers, employees, and other agents, including in providing documentation, affidavits, depositions or other testimony settlement reached in connection with the Retained Litigation. Sellers acknowledge Buyer shall, and agree that any refusal by any Person (other than shall cause the Company and its Affiliates) to Acquired Companies to, reasonably cooperate with Sellers with regard Seller, at Seller's cost and expense, in respect to the Retained Litigation and, in connection therewith shall furnish, on a timely basis, all information, records, documents and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by Seller and provide, on a timely basis, access to, and availability of, Company Employees for purposes of such litigation, including, without limitation, for purposes of assisting in trial preparation and the conduct of the defense of any trial. Seller may settle or compromise the Retained Litigation (i) with the written consent of Buyer, which consent shall not limit Sellers’ indemnification obligations pursuant be unreasonably withheld or delayed, or (ii) without such consent, so long as such settlement or compromise includes (a) an unconditional release of the Acquired Companies from all Liability in respect of such Retained Litigation to Section 7.1(cthe extent any of the Acquired Companies are named as a defendant in such Retained Litigation or it would be reasonable to expect that any of the Acquired Companies will be named as defendants in connection with such Retained Litigation, (b) hereindoes not subject Buyer or its Affiliates (including the Acquired Companies) to any injunctive relief or any equitable remedy and (c) does not include a statement or admission of fault, culpability, or failure to act by or in behalf of Buyer or its Affiliates (including the Acquired Companies).

Retained Litigation. The following shall apply with respect to the Retained Litigation: (a) With respect to the Retained Litigation, the The Parties acknowledge and agree that Sellers have an obligation Seller shall retain all rights to indemnify each pursue the prosecution and defense of the Retained Litigation. Buyer Indemnified Party hereby grants and hold it harmless against and in respect of assigns to Seller any and all Losses which arise rights, title and interest in and to any and all claims, actions and causes of action of whatever kind or nature, that the Group Companies have, may have or did have, in connection with and arising out of the Retained Litigation. (b) Notwithstanding anything to the contrary herein, Seller (or its affiliates) shall assume and control the prosecution and defense of the Retained Litigation in all respects, including the settlement thereof and that Sellers any decision whether to appeal. Notwithstanding the foregoing sentence, Seller shall have exercised their the right to assume settle, compromise or discharge Retained Litigation only (A) with the entire control prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, solely with respect to any portion of the settlement, compromise or discharge (x) providing for relief to any Buyer Indemnified Parties of damages other than the payment of monetary damages or (y) involving a finding or admission of any breach or violation by any Buyer Indemnified Party or (B) without Buyer’s consent if such settlement, compromise or discharge (x) provides for no relief relating to any Buyer Indemnified Parties other than the payment of monetary damages, including royalty payments, and (y) involves no finding or admission of any breach or violation by any Buyer Indemnified Party. Buyer shall, and shall cause its affiliates, employees and employees of the Group Companies to fully cooperate with, and provide reasonable assistance, including, without limitation, access to employees, books and records of the Group Companies (including Intellectual Property of the Group Companies), as may be requested by Seller (and its affiliates) in the prosecution and defense thereofof the Retained Litigation. In connection therewithSeller shall be liable for reasonable out-of-pocket costs or expenses related to employees of the Buyer or its affiliates (including employees of the Group Companies) cooperation and assistance in the prosecution and defense of the Retained Litigation. (c) Notwithstanding anything herein to the contrary, the Company has engaged Buyer Indemnified Parties’ right to indemnification provided in Section 7.02(a)(v) shall constitute the law firms set forth on Schedule 7.9 to defend the Company sole and exclusive remedy for all claims with respect to the Retained Litigation, andand Seller shall have no other liability for any Actions, except as otherwise agreed by settlements, compromises or Damages relating thereto, in connection therewith or arising or resulting therefrom, to the Company Buyer Indemnified Parties (including the Group Companies). In furtherance of the foregoing, each of the Buyer Indemnified Parties hereby waives, to the fullest extent permitted under applicable Law, any and Equity Sellerall rights, such counsel shall continue to represent the Company in that regard. For avoidance claims and causes of doubt the fees, costs and expenses of such counsel shall be Losses arising from the Retained Litigation and such Losses shall be borne directly by Sellers. To the extent the Company pays any Losses action it may have against Seller with respect to the Retained Litigation, Sellers shall promptly reimburse the Company for such Losses except to the extent such Losses are paid directly by the applicable insurance carrier. To the extent a potential conflict of interest may exist, the Buyer Indemnified Parties agree to waive that conflict and, if requested by Sellers, to execute a joint representation agreement in which the Buyer Indemnified Parties agree to waive any actual or perceived conflicts of interest. Buyers acknowledge and agree that Sellers shall have other than the right to direct the defense of the Retained Litigation in accordance with seek indemnity pursuant to Section 7.37.02(a)(v). (bd) In furtherance Notwithstanding anything herein to the contrary, Seller shall be entitled to retain copies of all books and records related to, or that may be required for prosecution and defense of, and not in limitation of, the Buyer Indemnified Parties’ obligations under Section 7.3 with respect to the any Retained Litigation, Buyers shall cause the Company to cooperate reasonably with the appointed counsel and Sellers in connection with the defense of the Retained Litigation, including without limitation (i) making available all pertinent information as such counsel or Sellers, its representatives or other parties in discovery may reasonably request, and (ii) requiring the reasonable cooperation of the Company’s officers, employees, and other agents, including in providing documentation, affidavits, depositions or other testimony in connection with the Retained Litigation. Sellers acknowledge and agree that any refusal by any Person (other than the Company and its Affiliates) to cooperate with Sellers with regard to the conduct of the defense of the Retained Litigation shall not limit Sellers’ indemnification obligations pursuant to Section 7.1(c) herein.

Retained Litigation. The Notwithstanding anything contained in this Agreement to the contrary, the parties hereto agree that Seller, at its cost 112 and expense, shall retain, and shall have the sole right to control, all claims and causes of action which have been asserted or may be asserted in the future by or on behalf of the Acquired Companies in the following shall apply captioned lawsuits and/or any other lawsuits which may be filed in the future with respect to the subject matter of such captioned lawsuits (hereinafter collectively referred to as the "Retained Litigation:"): (a) With respect to the Retained In re Linerboard Antitrust Litigation, the Parties acknowledge and agree that Sellers have an obligation to indemnify each Buyer Indemnified Party and hold it harmless against and in respect of any and all Losses which arise out of the Retained Litigation and that Sellers have exercised their right to assume the entire control of the defense thereofMDL Docket No. In connection therewith, the Company has engaged the law firms set forth on Schedule 7.9 to defend the Company with respect to the Retained Litigation, and, except as otherwise agreed by the Company and Equity Seller, such counsel shall continue to represent the Company in that regard. For avoidance of doubt the fees, costs and expenses of such counsel shall be Losses arising from the Retained Litigation and such Losses shall be borne directly by Sellers. To the extent the Company pays any Losses with respect to the Retained Litigation, Sellers shall promptly reimburse the Company for such Losses except to the extent such Losses are paid directly by the applicable insurance carrier. To the extent a potential conflict of interest may exist, the Buyer Indemnified Parties agree to waive that conflict and, if requested by Sellers, to execute a joint representation agreement in which the Buyer Indemnified Parties agree to waive any actual or perceived conflicts of interest. Buyers acknowledge and agree that Sellers shall have the right to direct the defense of the Retained Litigation in accordance with Section 7.3.1261 (E.D. Pa), (b) In furtherance ofre Vitamins Antitrust Litigation (MDL No. 1285) Misc. 99-0197 (D.D.C.), and (c) Giral v. F-Xxxxxxx XxXxxxx, Civil Action No. 98 CA 7467 (D.C. Sup. Ct.); including any appeals thereof. Seller shall be entitled to receive and not in limitation of, retain the Buyer Indemnified Parties’ obligations under Section 7.3 with respect to the Retained Litigation, Buyers shall cause the Company to cooperate reasonably with the appointed counsel and Sellers in connection with the defense benefits of the Retained Litigation, including without limitation (i) making available all pertinent information as such counsel any judgment awarded or Sellers, its representatives or other parties in discovery may reasonably request, and (ii) requiring the reasonable cooperation of the Company’s officers, employees, and other agents, including in providing documentation, affidavits, depositions or other testimony settlement reached in connection with the Retained Litigation. Sellers acknowledge Buyer shall, and agree that any refusal by any Person (other than shall cause the Company and its Affiliates) to Acquired Companies to, reasonably cooperate with Sellers with regard Seller, at Seller's cost and expense, in respect to the Retained Litigation and, in connection therewith shall furnish, on a timely basis, all information, records, documents and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by Seller and provide, on a timely basis, access to, and availability of, Company Employees for purposes of such litigation, including, without limitation, for purposes of assisting in trial preparation and the conduct of the defense of any trial. Seller may settle or compromise the Retained Litigation (i) with the written consent of Buyer, which consent shall not limit Sellers’ indemnification obligations pursuant be unreasonably withheld or delayed, or (ii) without such consent, so long as such settlement or compromise includes (a) an unconditional release of the Acquired Companies from all Liability in respect of such Retained Litigation to Section 7.1(cthe extent any of the Acquired Companies are named as a defendant in such Retained Litigation or it would be reasonable to expect that any of the Acquired Companies will be named as defendants in connection with such Retained Litigation, (b) hereindoes not subject Buyer or its Affiliates (including the Acquired Companies) to any injunctive relief or any equitable remedy and (c) does not include a statement or admission of fault, culpability, or failure to act by or in behalf of Buyer or its Affiliates (including the Acquired Companies).