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. (b) Notwithstanding Section 5.13(a), no settlement of any Retained Litigation that includes a non-monetary component applicable to the Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall govern.

Retained Litigation. The following shall apply with respect to the Retained Litigation: (a) From With respect to the Retained Litigation, the Parties acknowledge and after the Closing, Seller shall 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 harmless from 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 against any costs or expenses (except internal administrative expenses, including employee salaries) agree that Sellers shall have the right to direct the defense of the Acquired Companies or Related Consolidated Entities incurred 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 defend or settle the Retained Litigation, or satisfy any judgment against Buyer or its Affiliates Buyers shall cause the Company to cooperate reasonably with the appointed counsel and Sellers in connection therewith; provided, that: (i) Seller shall, subject to Section 5.13(b), retain sole control over with 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, includingincluding without limitation (i) making available all pertinent information as such counsel or Sellers, using commercially its representatives or other parties in discovery may reasonably request, and (ii) requiring the reasonable efforts cooperation of the Company’s officers, employees, and other agents, including in providing datadocumentation, affidavits, depositions or other testimony or documents at Seller’s reasonable request in connection with the Retained Litigation. Sellers acknowledge and expense agree that any refusal by any Person (not including Buyer’s internal administrative expenses, including employee salaries). For other than the avoidance of doubt Company and notwithstanding anything contained herein its Affiliates) to cooperate with Sellers with regard to the contrary, all rights with respect to the Indemnification Assets and any corresponding direct claims against the former direct and indirect owners conduct of the Business shall remain defense of the rights of Seller and its Affiliates and Retained Litigation shall not be affected in any manner by this Agreement. Prior limit Sellers’ indemnification obligations pursuant 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 orderSection 7.1(c) herein. (b) Notwithstanding Section 5.13(a), no settlement of any Retained Litigation that includes a non-monetary component applicable to the Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall govern.

Retained Litigation. (a) From The Buyer shall, and after shall procure that, following the Closing, the Companies shall take such actions as the Seller shall indemnify and hold the Buyer Indemnified Parties harmless from and 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 costs or expenses (except internal administrative expenses, including employee salaries) of the Acquired Companies or Related Consolidated Entities incurred to defend or settle proceedings which comprise the Retained Litigation, or satisfy any judgment against subject to the Buyer or its Affiliates being paid all reasonable costs and expenses incurred by it and the Companies in connection therewithcomplying with the Seller’s request; and provided, that: (i) Seller shallthat the Buyer and the Companies shall not be required to agree to incur any liabilities, subject obligations or restrictions which restrict or impair the operation of the Business. The Buyer shall ensure that no admissions in relation to Section 5.13(b)Retained Litigation shall be made by or on behalf of any Company, retain sole control over the defense or settlement and no part of the Retained Litigation; (ii) BuyerLitigation shall be compromised, on behalf disposed of itself and its Affiliates (A) agrees that it shall not take, and shall cause its Affiliates not to take, any action or settled without Seller’s the 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. (b) Notwithstanding Section 5.13(a)The Buyer shall, no settlement 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 the right to examine and copy or photograph any assets, accounts, documents and records, in each case during normal business hours, as the Seller may reasonably request in connection with the Retained Litigation; provided, that the Buyer shall not be required to provide such information and 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 amounts recovered by any Company (whether by award of damages or costs, settlement, insurance or otherwise) as compensation or indemnification arising out of any claims to which the Retained Litigation that includes a non-monetary component applicable relates shall be promptly paid to the Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall governSeller.

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 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 Related Consolidated Entities incurred to defend 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 settle 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 satisfy 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 judgment against Buyer 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 Affiliates choice to represent Purchaser and/or any of its Subsidiaries, including ICX, in connection therewithwith any Retained Litigation, and Purchaser shall pay the fees, charges and disbursements of such counsel; provided, that: provided that (i) Seller shallshall have the right to approve the identity of such counsel, subject such approval not to Section 5.13(b)be unreasonably withheld or delayed, retain sole and (ii) such counsel shall have a passive and advisory role only and shall not have the right to control over any aspect of the defense or settlement counterclaim (if any) in respect of the any Retained Litigation; . (iib) BuyerIn addition, on behalf of itself and its Affiliates (Awithout prejudice to Purchaser’s obligations under Section 5.08(b) agrees that it shall not takeand Section 5.10, Purchaser shall, and shall cause its Affiliates not Affiliates, including ICX, subject 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, reimbursement of all out-of-pocket costs incurred by Purchaser and (B) shall pay to Seller any proceeds Buyer or its Affiliates, including the Acquired Companies or Related Consolidated Entitiesto: (i) cooperate and/or provide assistance, 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 reasonably requested by this Section 5.13(a)) and (iii) Buyer and its Affiliates shall provide Seller Seller, in connection with reasonable cooperation in the defense, investigation, negotiation 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. (b) Notwithstanding Section 5.13(a), no settlement of any Retained Litigation 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, 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 includes 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-monetary component applicable 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 Acquired Companies 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) pay to Purchaser [***] or Related Consolidated Entities (ii) deliver to Purchaser a fully paid up transferable perpetual license (or such other intellectual property rights) that would permit Purchaser (or such Subsidiary) to continue to operate the Business in such manner. Purchaser’s rights under this Section 5.15(c) shall be agreed to without Buyer’s prior written consent; provided the sole and exclusive remedy of any Purchaser Indemnified Person in respect of Losses that with respect to certain Retained Litigation matters, the provisions arise out of Schedule 5.13(b) shall governany such restriction.

Retained Litigation. (a) From Notwithstanding anything contained in this Agreement to the contrary, the parties hereto agree that Seller, at its cost and after expense, shall retain, and shall have the Closingsole right to control, Seller shall indemnify all claims and hold causes of action which have been asserted or may be asserted in the Buyer Indemnified Parties harmless from and against any costs future by or expenses (except internal administrative expenses, including employee salaries) on behalf of the Acquired Companies in the following 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) In re Linerboard Antitrust Litigation, MDL Docket No. 1261 (E.D. Pa.), -113- (b) In re Vitamins Antitrust Litigation (MDL No. 1285) Misc. 99-0197 (D.D.C.), and (c) Giral v. F-Hoffman LaRoche, Civil Action No. ▇▇ ▇▇ 7▇▇▇ (▇.C. Sup. Ct.); including any appeals thereof. Seller shall be entitled to receive and retain the benefits of any judgment awarded or Related Consolidated Entities incurred to defend or settle settlement reached in connection with the Retained Litigation. Buyer shall, and shall cause the Acquired Companies to, reasonably cooperate with 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 any trial. Seller may settle or compromise the Retained Litigation (i) with the written consent of Buyer, which consent shall not be unreasonably withheld or delayed, or satisfy (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 the extent any judgment against 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) does 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 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 Buyer or 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(aCompanies)) 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. (b) Notwithstanding Section 5.13(a), no settlement of any Retained Litigation that includes a non-monetary component applicable to the Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall govern.

Retained Litigation. (a) From Notwithstanding anything contained in this Agreement to the contrary, the parties hereto agree that Seller, at its cost 112 and after expense, shall retain, and shall have the Closingsole right to control, Seller shall indemnify all claims and hold causes of action which have been asserted or may be asserted in the Buyer Indemnified Parties harmless from and against any costs future by or expenses (except internal administrative expenses, including employee salaries) on behalf of the Acquired Companies in the following 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) In re Linerboard Antitrust Litigation, MDL Docket No. 1261 (E.D. Pa), (b) In re Vitamins Antitrust Litigation (MDL No. 1285) Misc. 99-0197 (D.D.C.), and (c) Giral v. F-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Civil Action No. 98 CA 7467 (D.C. Sup. Ct.); including any appeals thereof. Seller shall be entitled to receive and retain the benefits of any judgment awarded or Related Consolidated Entities incurred to defend or settle settlement reached in connection with the Retained Litigation. Buyer shall, and shall cause the Acquired Companies to, reasonably cooperate with 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 any trial. Seller may settle or compromise the Retained Litigation (i) with the written consent of Buyer, which consent shall not be unreasonably withheld or delayed, or satisfy (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 the extent any judgment against 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) does 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 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 Buyer or 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(aCompanies)) 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. (b) Notwithstanding Section 5.13(a), no settlement of any Retained Litigation that includes a non-monetary component applicable to the Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall govern.

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) 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 obtain indemnification for take reasonable steps necessary to defend diligently any of the Retained Litigation within 10 days after receiving written notice from another sourcethe Buyer to the effect that Seller has so failed, and (B) specifically detailing such failure, the Indemnified Party shall pay have the right but not the obligation to Seller any proceeds assume the defense of such Retained Litigation at the expense of Seller; it being understood that the Buyer or its Affiliates, including the Acquired Companies or Related Consolidated Entities, may receive as 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 from another source without the consent of Seller (provided that Seller has otherwise indemnified and held harmless the which shall not be unreasonably withheld or delayed). (c) The Buyer Indemnified Parties as contemplated by this Section 5.13(a)) and (iii) Buyer Seller shall cooperate in order to ensure the proper and its Affiliates shall provide Seller with reasonable cooperation in the defense, investigation, or settlement adequate defense of the Retained Litigation, includingincluding by providing access to each other's relevant business records and other documents, using commercially reasonable efforts in providing data, testimony or documents at Seller’s reasonable request and expense employees. (not including Buyer’s internal administrative expenses, including employee salaries). For the avoidance of doubt d) The Buyer Indemnified Parties 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 (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a protective orderRetained 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 the Retained Litigation, Buyer shall assign and transfer such amounts to Seller upon receipt thereof (unless the Buyer Indemnified Party is conducting and controlling the settlements and defense of the Retained Litigation in accordance with clause (b) Notwithstanding Section 5.13(aabove), no settlement of any Retained Litigation that includes a non-monetary component applicable to the Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall govern.

Retained Litigation. (a) From Notwithstanding any other provision set forth herein, Sellers shall continue to be responsible for all costs and after expenses for that litigation set forth in Schedule 8.8. Sellers shall have the Closingauthority to make all decisions concerning the litigation, Seller shall indemnify including, without limitation, decisions relating to the prosecution, amendment, supplementation or dismissal of claims, counterclaims and hold third party claims, the Buyer Indemnified Parties harmless from employment or continued employment of counsel, consultants and against experts, the substitution of a bond for mechanic’s lien, 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 therewithsettlement offers and settlement; provided, that: (i) Seller shallhowever, subject the Sellers may not agree to Section 5.13(b), retain sole control over any settlement that would impose any obligation on the defense Surviving Corporation or settlement any of the Retained Litigation; (ii) Buyer, on behalf of itself and its Affiliates (Aother than a payment obligation that will be paid immediately in full by the Sellers) agrees that it shall not take, and shall cause its Affiliates not to take, any action without SellerBuyer’s prior written consent (such consent consent, which shall not to be unreasonably withheld, conditioned or delayed. Furthermore, Sellers will be entitled to receive all proceeds, if any, recovered from such litigation by settlement, judgment enforcement, ancillary proceedings or otherwise recovered in such litigation or any other litigation related to it or arising out of it. To the extent reasonably necessary, and at Sellers’ sole cost and expense, Buyer will use its good faith efforts to cooperate with Sellers’ requests including but not limited to, making available Buyer’s personnel (i.e., C▇▇▇▇ ▇▇▇▇▇▇▇, B▇▇▇▇ ▇▇▇▇▇ or any other former Emerald employee working for Buyer) for deposition and trial testimony and for other proceedings in such litigation and making available to obtain indemnification Sellers and Sellers’ counsel the Green Theory project files, records, documents and electronically stored information in Buyer’s control, custody or possession which are reasonably required for the Retained Litigation from another source, prosecution 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 defense 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 ordersuch litigation. (b) Notwithstanding Section 5.13(a), no settlement of any Retained Litigation that includes a non-monetary component applicable to the Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall govern.

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) 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 obtain indemnification for take reasonable steps necessary to defend diligently any of the Retained Litigation within 10 days after receiving written notice from another sourcethe Buyer to the effect that Seller has so failed, and (B) specifically detailing such failure, the Indemnified Party shall pay have the right but not the obligation to Seller any proceeds assume the defense of such Retained Litigation at the expense of Seller; it being understood that the Buyer or its Affiliates, including the Acquired Companies or Related Consolidated Entities, may receive as 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 from another source without the consent of Seller (provided that Seller has otherwise indemnified and held harmless the which shall not be unreasonably withheld or delayed). (c) The Buyer Indemnified Parties as contemplated by this Section 5.13(a)) and (iii) Buyer Seller shall cooperate in order to ensure the proper and its Affiliates shall provide Seller with reasonable cooperation in the defense, investigation, or settlement adequate defense of the Retained Litigation, includingincluding by providing access to each other’s relevant business records and other documents, using commercially reasonable efforts in providing data, testimony or documents at Seller’s reasonable request and expense employees. (not including Buyer’s internal administrative expenses, including employee salaries). For the avoidance of doubt d) The Buyer Indemnified Parties 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 (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a protective orderRetained 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 the Retained Litigation, Buyer shall assign and transfer such amounts to Seller upon receipt thereof (unless the Buyer Indemnified Party is conducting and controlling the settlements and defense of the Retained Litigation in accordance with clause (b) Notwithstanding Section 5.13(aabove), no settlement of any Retained Litigation that includes a non-monetary component applicable to the Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall govern.

Retained Litigation. (a) From The Parties acknowledge and after the Closing, agree that Seller shall indemnify retain all rights to pursue the prosecution 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; . Buyer hereby grants and assigns to Seller any and all 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. (iib) BuyerNotwithstanding anything to the contrary herein, on behalf Seller (or its affiliates) shall assume and control the prosecution and defense of itself the Retained Litigation in all respects, including the settlement thereof and its Affiliates any decision whether to appeal. Notwithstanding the foregoing sentence, Seller shall have the right to settle, compromise or discharge Retained Litigation only (A) agrees that it shall not take, and shall cause its Affiliates not to take, any action without Seller’s with the prior written consent (such of Buyer, which consent shall not to be unreasonably withheld, conditioned or delayed, solely with respect to any portion of the settlement, compromise or discharge (x) providing for relief to obtain indemnification 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 Retained Litigation from another sourcepayment of monetary damages, including royalty payments, and (By) shall pay to Seller involves no finding or admission of any proceeds Buyer breach or its Affiliates, including the Acquired Companies or Related Consolidated Entities, may receive as indemnification for violation by any Retained Litigation from another source (provided that Seller has otherwise indemnified and held harmless the Buyer Indemnified Parties 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 contemplated may be requested by this Section 5.13(a)) and Seller (iii) Buyer and its Affiliates shall provide Seller with reasonable cooperation affiliates) in the defense, investigation, or settlement prosecution and defense of the Retained Litigation, including, using commercially . Seller shall be liable for reasonable efforts 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 providing data, testimony or documents at Seller’s reasonable request the prosecution and expense defense of the Retained Litigation. (not including Buyer’s internal administrative expenses, including employee salaries). For the avoidance of doubt and notwithstanding c) Notwithstanding anything contained herein to the contrary, the Buyer Indemnified Parties’ right to indemnification provided in Section 7.02(a)(v) shall constitute the sole and exclusive remedy for all rights claims with respect to the Indemnification Assets Retained Litigation, and Seller shall have no other liability for any corresponding direct claims against Actions, settlements, compromises or Damages relating thereto, in connection therewith or arising or resulting therefrom, to the former direct and indirect owners Buyer Indemnified Parties (including the Group Companies). In furtherance of the Business shall remain foregoing, each of the rights of Seller and its Affiliates and shall not be affected in any manner by this Agreement. Prior Buyer Indemnified Parties hereby waives, to the Closingfullest extent permitted under applicable Law, the Parties hereby agree to enter into a joint defense agreement in a form reasonably satisfactory any and all rights, claims and causes of action it may have against Seller with respect to the Parties. Seller shall use commercially reasonable efforts Retained Litigation, other than the right to avoid Buyer’s production of confidential information without a protective orderseek indemnity pursuant to Section 7.02(a)(v). (bd) Notwithstanding Section 5.13(a)anything herein to the contrary, no settlement Seller shall be entitled to retain copies of all books and records related to, or that may be required for prosecution and defense of, any Retained Litigation that includes a non-monetary component applicable to the Acquired Companies or Related Consolidated Entities shall be agreed to without Buyer’s prior written consent; provided that with respect to certain Retained Litigation matters, the provisions of Schedule 5.13(b) shall governLitigation.