Common use of Retained Litigation Clause in Contracts

Retained Litigation. (a) From and after the Closing, Seller shall 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 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 Closing, the Parties hereby agree to enter into a joint defense agreement in a form reasonably satisfactory to the Parties. Seller shall use commercially reasonable efforts to avoid Buyer’s production of confidential information without a protective order.

Retained Litigation. (a) From and after Following the Closing, Seller shall indemnify shall, at its own expense, (i) actively and hold diligently defend the Buyer Indemnified Parties harmless from and against any costs or expenses (except internal administrative expensesincluding, including employee salarieswithout limitation, Target Company) with respect to each Retained Litigation (regardless of whether such matter is set forth on Section 2.2.16 of the Acquired Companies 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 Related Consolidated Entities incurred that there are legal defenses available to defend 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 the 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 satisfy offer to settle or compromise any judgment against Buyer or its Affiliates in connection therewithRetained Litigation; provided, that: (i) Seller shallhowever, subject to Section 5.13(b)that the Indemnifying Party shall not, retain sole control over without 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 of the Indemnified Party, not to be unreasonably withheld, conditioned withheld or delayed, settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (x) to obtain indemnification for the Retained Litigation from another sourceimposition of a consent order, and (B) shall pay to Seller injunction or decree that would restrict in any proceeds Buyer significant respect the future activity or conduct of the Indemnified Party or any of its Affiliates, including (y) a finding or admission by the Acquired Companies Indemnified Party 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 of its Affiliates shall provide Seller with reasonable cooperation in of a violation of Applicable Law or a violation by the defense, investigation, Indemnified Party or settlement any 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 its Affiliates of doubt and notwithstanding anything contained herein to the contrary, all rights with respect to the 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 any Person or (z) any monetary liability of the Indemnified Party that will not be affected paid or reimbursed in any manner full by this Agreement. Prior to the Closing, Indemnifying Party within the Parties hereby agree to enter into a joint defense agreement in a form reasonably satisfactory to time period for payment set by the Parties. Seller shall use commercially reasonable efforts to avoid Buyer’s production of confidential information without a protective orderproposed settlement.

Retained Litigation. (a) From and after the Closing, Seller shall indemnify retain full control and hold responsibility for the Buyer Indemnified Parties harmless from defense, negotiation or settlement of, and any other action or decision relating to the Actions pending against any costs or expenses (except internal administrative expensesSeller, including employee salariesSubsidiaries of Seller and/or ICX in relation to the Business that are listed in Section 5.15(a) of the Acquired Companies or Related Consolidated Entities incurred to defend or settle Seller Disclosure Schedule (collectively, the “Retained Litigation”). The Retained Litigation includes the “Picturemail Retained Litigation”, or satisfy any judgment against Buyer or its Affiliates the “MDG Retained Litigation” and the “Other Retained Litigation”, in connection therewith; providedeach case as specified on Section 5.15(a) of such Schedule, that: (i) and, immediately prior to the Closing, Seller shall, subject shall deliver to Purchaser a supplement to Section 5.13(b5.15(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), 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 Seller shall not take, and shall cause its Affiliates not to take, settle any action Retained Litigation without SellerPurchaser’s prior written consent (which consent shall not be unreasonably withheld or delayed) unless the relief provided by such consent 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 Business after the Closing Date that is not indemnifiable by Seller under Section 10.01(a) or (iii), in the case of the Picturemail Retained Litigation, impose 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), respectively, Seller shall make a reasonable allocation between the pre-Closing and 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 of its choice to represent Purchaser and/or any of its Subsidiaries, including ICX, in connection with any Retained Litigation, and Purchaser shall pay the fees, charges and disbursements of such counsel; provided that (i) Seller shall have the right to approve the identity of such counsel, such approval not to be unreasonably withheld, conditioned withheld or delayed) to obtain indemnification for the Retained Litigation from another source, and (Bii) such counsel 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 have a passive 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 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 advisory role only and shall not be affected have the right to control any aspect of the defense or counterclaim (if any) in respect of any manner by this Agreement. Prior to the Closing, the Parties hereby agree to enter into a joint defense agreement in a form reasonably satisfactory to the Parties. Seller shall use commercially reasonable efforts to avoid Buyer’s production of confidential information without a protective orderRetained Litigation.