Common use of Specified Litigation Clause in Contracts

Specified Litigation. (a) From and after the Closing, (x) each Party shall notify the other Party promptly (and in any event within three (3) Business Days) following the receipt by such Party or any of its Affiliates of any notice, communication, correspondence or documentation from any third party (including a Governmental Authority) in relation to the matter described in Schedule 6.14(A) (the “Primary Specified Litigation”), and (y) the Seller shall notify the Purchaser promptly (and in any event within three (3) Business Days) following the receipt by the Seller or any of its Affiliates of any notice, communication, correspondence or documentation from any third party (including a Governmental Authority) in relation to the matters described in Schedule 6.14(B) (the “Additional Specified Litigations” and, collectively with the Primary Specified Litigation, the “Specified Litigations”). Unless otherwise agreed in writing by the Parties, and subject to this Section 6.14, from and after the Closing, the Purchaser shall be responsible for and have control over the defense, settlement or any other action in connection with the Specified Litigations; provided, however, that the Purchaser’s responsibility and control over any defense or settlement of any claims relating to the Specified Litigations shall in no way derogate its rights to indemnification for the Primary Specified Litigation as specifically provided for under this Section 6.14. In connection with the Specified Litigations, from and after the Closing (i) (A) each Party shall, and shall cause their respective Affiliates to, promptly provide the other Party with copies of all correspondence with or from third parties (including any Governmental Authority) relating to the Primary Specified Litigation and, as reasonably requested, with reasonable access during normal business hours to all files or other documents in its or any of its Affiliates’ possession relating to the Primary Specified Litigation (in each case, to the extent not previously provided to the other Party and to the extent such access would not unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations), and (B) the Seller shall, and shall cause its Affiliates to, promptly provide the Purchaser with copies of all correspondence with or from third parties (including any Governmental Authority) relating to the Additional Specified Litigations and, as reasonably requested, with reasonable access during normal business hours to all files or other documents in its or any of its Affiliates’ possession relating to such Additional Specified Litigation (in each case, to the extent not previously provided to the other Party, to the extent such access would not unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations and to the extent such correspondence, files or other documents are not in the possession of the Company); (ii) (A) each Party shall, to the extent consistent with applicable Law, notify the other Party promptly following such Party’s or any of its Affiliates’ receipt of any and all subpoenas, Orders and material requests and communications of any third party (including any Governmental Authority) relating to the Primary Specified Litigation, and (B) Seller shall, to the extent consistent with applicable Law, notify the Purchaser promptly following the Seller’s or any of its Affiliates’ receipt of any and all subpoenas, Orders and material requests and communications of any third party (including any Governmental Authority) relating to any Additional Specified Litigation; (iii) the Seller shall and shall cause its Affiliates to reasonably cooperate with the Purchaser and any of its Representatives (including its outside legal counsel) in the defense of the Specified Litigations, including using reasonable best efforts to facilitate the Purchaser engaging the same counsel engaged by the Seller or any of its Affiliates after the Closing with respect thereto, including by providing all waivers and consents required for Purchaser to engage such counsel; (iv) subject to execution of a joint defense agreement between the Seller and the Purchaser in form and substance reasonably acceptable to them, (A) solely with respect to the Primary Specified Litigation, the Seller shall be entitled to attend and participate on any substantive calls with outside counsel to the extent practicable, provide input to the Purchaser, directly or through its own legal counsel, on strategic decisions relating to the Primary Specified Litigation (including whether to appeal any adverse rulings), which the Purchaser will consider in good faith; provided that, the Purchaser shall make all final decisions relating to the Primary Specified Litigation in its sole discretion; and (B) the Purchaser shall keep the Seller reasonably informed of the status of the Primary Specified Litigation and shall notify the Seller promptly (and in any event within three (3) Business Days) following any material developments in relation thereto; (v) the Purchaser shall be entitled to change legal counsel for any of the Specified Litigations; provided, that, with respect to the Primary Specified Litigation, the Purchaser agrees to retain the outside legal counsel engaged by the Seller for such matter (the “Incumbent Counsel”) as of the date of this Agreement through the completion of the currently pending appeal to the United States Court of Appeals for the Ninth Circuit; provided further that the Purchaser may, at its sole cost and expense, retain outside legal counsel of its choosing to consult with the Incumbent Counsel with respect to such appeal and the Seller shall direct the Incumbent Counsel to consult in good faith with the Purchaser’s counsel; (vi) with respect to the Additional Specified Litigations, and from and after the completion of the substitution contemplated by Section 6.14(b) with respect to the Primary Specified Litigation, the Purchaser’s counsel shall be the sole counsel of record for such Specified Litigations; and (vii) subject to Section 6.14(f), each of the Seller and its Affiliates and the Purchaser and its Affiliates shall bear its own fees, costs and expenses incurred in connection with the Specified Litigations. Notwithstanding anything in this Agreement to the contrary, the Purchaser and the Seller each agree that the legal counsel of the other Party may maintain a copy of all information, materials and documents that may be required to respond to any requests from any Governmental Authority relating to the Specified Litigations. The rights and obligations of the Parties under this Section 6.14(a) shall be in addition to and not limited by Section 6.8 or Section 6.9. (b) From and after the date of this Agreement through the Closing, the Seller shall use reasonable best efforts to substitute the Company for the Seller as the defendant in the Primary Specified Litigation and the Purchaser shall reasonably cooperate with the Seller in connection therewith. From and after the Closing, each of the Purchaser and the Seller shall use their respective reasonable best efforts to substitute the Company for the Seller as the defendant in the Primary Specified Litigation and shall reasonably cooperate with each other in connection therewith. In the event that substitution is not permitted in the Primary Specified Litigation, and notwithstanding anything to the contrary in this Section 6.14, the Purchaser shall nonetheless be responsible for and have control over the defense, settlement or any other action in connection with the Primary Specified Litigation and Seller will take reasonable steps to ensure Purchaser shall be able to exercise such control. (c) Prior to the Closing Date, the Seller may settle any Additional Specified Litigations, which settlement shall require the Purchaser’s prior written consent; provided that the Seller shall be entitled to reimbursement from the Purchaser for the amount of any monetary settlement and reasonable and documented out-of-pocket costs and expenses paid by the Seller in the negotiation and documentation of such settlement). The Purchaser shall be responsible for any and all costs, expenses (including attorneys’ fees and legal costs), damages or settlements with respect to the Additional Specified Litigations, in each case, incurred following the Closing. The Seller shall not settle the Primary Specified Litigation without the Purchaser’s prior written consent. From and after the Closing, the Purchaser shall not settle the Primary Specified Litigation without the Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). (d) In the event of an adverse ruling in the Primary Specified Litigation, whether rendered prior to or after the date of this Agreement or prior to or after the Closing, the Seller shall pay any bond required in connection with any appeal of such adverse ruling. Nothing in this Section 6.14(d) shall limit the Purchaser’s rights set forth in Section 6.14(a) (including the Purchaser’s right to be responsible for and have control over the defense, settlement or any other action relating to the Primary Specified Litigation). (e) As of the Closing Date, all written communications with counsel, including written communications (prior to or following the Closing) between counsel for the Seller or any of its Affiliates, on the one hand, and the Seller or any of its Affiliates, on the other hand, that relate in any way to the Specified Litigations (collectively, the “Specified Communications”) shall be shared with the Purchaser pursuant to the Common Interest Agreement by and among the Purchaser, the Company and the Seller, dated as of September 29, 2017. As of the Closing Date, as to all Specified Communications, the attorney-client privilege and the expectation of client confidence may be asserted by the Seller, the Purchaser and their respective Affiliates, and the Seller, the Purchaser and their respective Affiliates may use or rely on any of the Specified Communications in any action relating to the Specified Litigations; provided, however, that neither the Seller nor any of its Affiliates may waive, or seek to obtain a waiver of, the attorney-client privilege with respect to such Specified Communications. (f) From and after the Closing, the Seller shall indemnify and hold harmless the Purchaser Indemnified Parties from and against, and compensate and reimburse the Purchaser Indemnified Parties for, any and all losses, damages, costs, fines, judgments, awards, penalties, interest, obligations, payments, settlements, expenses and Liabilities, including actual damages, punitive damages, consequential damages, special damages and diminution in value of the Company and its Subsidiaries as of the date hereof or the Business in connection with the Primary Specified Litigation, together with all reasonable and documented costs and expenses (including reasonable and documented attorneys’ and other legal fees and out-of-pocket expenses), incurred or suffered by the Purchaser Indemnified Parties arising from the Primary Specified Litigation; provided that for purposes of computing such damages there shall be deducted an amount equal to the amount of any insurance proceeds, indemnification payments, contribution payments, reimbursements, and Tax benefits actually received by any Purchaser Indemnified Party or any of its Affiliates in connection with such damages or the circumstances giving rise thereto; provided, however, that any such deduction shall be net of any reasonable, out of pocket costs or expenses incurred in obtaining such recovery. (g) With respect to the Primary Specified Litigation, the terms and provisions of this Section 6.14 shall supersede the indemnification procedures set forth in Section 9.4. With respect to the Additional Specified Litigations, the indemnification procedures set forth in Section 9.4 shall apply unless otherwise set forth in this Section 6.14. For the avoidance of doubt, the Additional Specified Litigations, to the extent disclosed on Schedule 3.11, are not subject to indemnification by Seller under Article IX or otherwise. (h) The Seller shall be entitled to receive any attorneys’ fees awarded by the court of the Eastern District of Texas, and actually collected by the Purchaser or any of its Affiliates, in the event such trial court grants the pending motion for attorneys’ fees in the matter listed in item 1 of Schedule 6.14(B) and the Purchaser shall pay to the Seller any such attorneys’ fees promptly following receipt thereof; provided that (i) the Purchaser shall be entitled to retain any reasonable and documented, out-of-pocket costs or expenses (including reasonable and documented attorneys’ fees) incurred by it in connection with pursuing or collecting such award for attorneys’ fees; (ii) the Purchaser shall upon the Seller’s request use commercially reasonable efforts to collect such award of attorneys’ fees (provided that the Purchaser shall be entitled to reimbursement from the Seller for any reasonable and documented, out-of-pocket costs or expenses (including reasonable and documented attorneys’ fees) incurred by it in connection with pursuing or collecting such award for attorneys’ fees); and (iii) the Purchaser shall not settle this matter collectively with another matter in a way that interferes with or jeopardizes the collection of such attorneys’ fees without the Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed, except based on the Seller receiving reasonable and appropriate value in consideration for such attorneys’ fees).

Specified Litigation. (a) From and after the ClosingWithout limiting Section 5.10, (x) each Party shall notify the other Party promptly (and in any event within three (3) Business Days) following the receipt by such Party or any of its Affiliates of any noticeClosing Date, communication, correspondence or documentation from any third party (including a Governmental Authority) in relation to the matter described in Schedule 6.14(A) (the “Primary Specified Litigation”), DuPont shall have exclusive authority and (y) the Seller shall notify the Purchaser promptly (and in any event within three (3) Business Days) following the receipt by the Seller or any of its Affiliates of any notice, communication, correspondence or documentation from any third party (including a Governmental Authority) in relation to the matters described in Schedule 6.14(B) (the “Additional Specified Litigations” and, collectively with the Primary Specified Litigation, the “Specified Litigations”). Unless otherwise agreed in writing by the Parties, and subject to this Section 6.14, from and after the Closing, the Purchaser shall be responsible for and have control over the defenseinvestigation, settlement prosecution, defense and appeal of all then pending or any other action threatened Actions primarily relating to or arising in connection with the Specified LitigationsExcluded Businesses, the Excluded Assets or the Retained Liabilities, including Actions involving the matters set forth on Section A(23) of the Seller’s Disclosure Schedule (each, a “DuPont Action”), and, to the extent DuPont acknowledges in writing that any Action is a Retained Liability, may settle or compromise, or consent to the entry of any judgment with respect to any such Action without the consent of Buyer; provided, however, that the Purchaser’s responsibility if both DuPont (or a Retained Subsidiary) and control over any defense or settlement of any claims relating to the Specified Litigations shall in no way derogate its rights to indemnification for the Primary Specified Litigation as specifically provided for under this Section 6.14. In connection with the Specified Litigations, from and after the Closing Buyer (i) (A) each Party shall, and shall cause their respective Affiliates to, promptly provide the other Party with copies of all correspondence with or from third parties (including any Governmental Authority) relating to the Primary Specified Litigation and, as reasonably requested, with reasonable access during normal business hours to all files or other documents in its or any of its Affiliates’ possession relating Subsidiaries, including any DPC Company or its Subsidiaries) are named as parties to the Primary Specified Litigation any DuPont Action (in each case, to the extent not previously provided to the other Party and to the extent such access would not unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operationsa “Joint Action”), and (B) the Seller shall, and shall cause its Affiliates to, promptly provide the Purchaser with copies of all correspondence with or from third parties (including any Governmental Authority) relating to the Additional Specified Litigations and, as reasonably requested, with reasonable access during normal business hours to all files or other documents in its or any of its Affiliates’ possession relating to such Additional Specified Litigation (in each case, to the extent not previously provided to the other Party, to the extent such access would not unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations and to the extent such correspondence, files or other documents are not in the possession of the Company); (ii) (A) each Party shall, to the extent consistent with applicable Law, notify the other Party promptly following such Party’s or any of its Affiliates’ receipt of any and all subpoenas, Orders and material requests and communications of any third party (including any Governmental Authority) relating to the Primary Specified Litigation, and (B) Seller shall, to the extent consistent with applicable Law, notify the Purchaser promptly following the Seller’s or any of its Affiliates’ receipt of any and all subpoenas, Orders and material requests and communications of any third party (including any Governmental Authority) relating to any Additional Specified Litigation; (iii) the Seller shall and shall cause its Affiliates to reasonably cooperate with the Purchaser and any of its Representatives (including its outside legal counsel) in the defense of the Specified Litigations, including using reasonable best efforts to facilitate the Purchaser engaging the same counsel engaged by the Seller or any of its Affiliates after the Closing with respect thereto, including by providing all waivers and consents required for Purchaser to engage such counsel; (iv) subject to execution of a joint defense agreement between the Seller and the Purchaser in form and substance reasonably acceptable to them, (A) solely with respect to the Primary Specified Litigation, the Seller shall be entitled to attend and participate on any substantive calls with outside counsel to the extent practicable, provide input to the Purchaser, directly or through its own legal counsel, on strategic decisions relating to the Primary Specified Litigation (including whether to appeal any adverse rulings), which the Purchaser will consider in good faith; provided that, the Purchaser shall make all final decisions relating to the Primary Specified Litigation in its sole discretion; and (B) the Purchaser shall keep the Seller reasonably informed of the status of the Primary Specified Litigation and shall notify the Seller promptly (and in any event within three (3) Business Days) following any material developments in relation thereto; (v) the Purchaser shall be entitled to change legal counsel for any of the Specified Litigations; provided, that, with respect to the Primary Specified Litigation, the Purchaser agrees to retain the outside legal counsel engaged by the Seller for such matter (the “Incumbent Counsel”) as of the date of this Agreement through the completion of the currently pending appeal to the United States Court of Appeals for the Ninth Circuit; provided further that the Purchaser may, at its sole cost and expense, retain outside legal counsel of its choosing to consult with the Incumbent Counsel with respect to such appeal and the Seller shall direct the Incumbent Counsel to consult in good faith with the Purchaser’s counsel; (vi) with respect to the Additional Specified Litigations, and from and after the completion of the substitution contemplated by Section 6.14(b) with respect to the Primary Specified Litigation, the Purchaser’s counsel shall be the sole counsel of record for such Specified Litigations; and (vii) subject to Section 6.14(f), each of the Seller and its Affiliates and the Purchaser and its Affiliates shall bear its own fees, costs and expenses incurred in connection with the Specified Litigations. Notwithstanding anything in this Agreement to the contrary, the Purchaser and the Seller each agree that the legal counsel of the other Party may maintain a copy of all information, materials and documents that may be required to respond to any requests from any Governmental Authority relating to the Specified Litigations. The rights and obligations of the Parties under this Section 6.14(a) shall be in addition to and not limited by Section 6.8 or Section 6.9. (b) From and after the date of this Agreement through the Closing, the Seller shall use reasonable best efforts to substitute the Company for the Seller as the defendant in the Primary Specified Litigation and the Purchaser shall reasonably cooperate with the Seller in connection therewith. From and after the Closing, each of the Purchaser and the Seller shall use their respective reasonable best efforts to substitute the Company for the Seller as the defendant in the Primary Specified Litigation and shall reasonably cooperate with each other in connection therewith. In the event that substitution is not permitted in the Primary Specified Litigation, and notwithstanding anything to the contrary in this Section 6.14, the Purchaser shall nonetheless be responsible for and have control over the defense, settlement or any other action in connection with the Primary Specified Litigation and Seller will take reasonable steps to ensure Purchaser shall be able to exercise such control. (c) Prior to the Closing Date, the Seller may settle any Additional Specified Litigations, which settlement shall require the Purchaser’s prior written consent; provided that the Seller shall be entitled to reimbursement from the Purchaser for the amount of any monetary settlement and reasonable and documented out-of-pocket costs and expenses paid by the Seller in the negotiation and documentation of such settlement). The Purchaser shall be responsible for any and all costs, expenses (including attorneys’ fees and legal costs), damages or settlements with respect to the Additional Specified Litigations, in each case, incurred following the Closing. The Seller DuPont shall not settle the Primary Specified Litigation such Joint Action without the Purchaser’s prior written consent. From and after the Closing, the Purchaser shall not settle the Primary Specified Litigation without the Seller’s prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned ) unless such settlement releases Buyer (or delayed). (d) In the event of an adverse ruling in the Primary Specified Litigation, whether rendered prior to or after the date of this Agreement or prior to or after the Closing, the Seller shall pay any bond required in connection with any appeal of such adverse ruling. Nothing in this Section 6.14(d) shall limit the Purchaser’s rights set forth in Section 6.14(a) (including the Purchaser’s right to be responsible for and have control over the defense, settlement or any other action relating to the Primary Specified Litigation). (e) As of the Closing Date, all written communications with counsel, including written communications (prior to or following the Closing) between counsel for the Seller or any of its Affiliates, on the one hand, and the Seller or any of its Affiliates, on the other hand, that relate in any way to the Specified Litigations (collectively, the “Specified Communications”Subsidiaries named as parties) shall be shared with the Purchaser pursuant to the Common Interest Agreement by and among the Purchaser, the Company and the Seller, dated as of September 29, 2017. As of the Closing Date, as to all Specified Communications, the attorney-client privilege and the expectation of client confidence may be asserted by the Seller, the Purchaser and their respective Affiliates, and the Seller, the Purchaser and their respective Affiliates may use or rely on any of the Specified Communications in any action relating to the Specified Litigations; provided, however, that neither the Seller nor any of its Affiliates may waive, or seek to obtain a waiver of, the attorney-client privilege with respect to such Specified Communications. (f) From and after the Closing, the Seller shall indemnify and hold harmless the Purchaser Indemnified Parties from and against, and compensate and reimburse the Purchaser Indemnified Parties for, any and all losses, damages, costs, fines, judgments, awards, penalties, interest, obligations, payments, settlements, expenses and Liabilities, including actual damages, punitive damages, consequential damages, special damages and diminution in value of the Company and its Subsidiaries as of the date hereof or the Business in connection with the Primary Specified Litigation, together with all reasonable and documented costs and expenses (including reasonable and documented attorneys’ and other legal fees and out-of-pocket expenses), incurred or suffered by the Purchaser Indemnified Parties arising from the Primary Specified Litigation; provided that for purposes of computing such damages there shall be deducted an amount equal to the amount of any insurance proceeds, indemnification payments, contribution payments, reimbursements, and Tax benefits actually received by any Purchaser Indemnified Party or any of its Affiliates in connection with such Joint Action and provides relief consisting solely of money damages borne by DuPont (or a Retained Subsidiary) or other relief which does not have any material impact on the circumstances giving rise thereto; providedTransferred DPC Companies and their Subsidiaries, howevertaken as a whole. Without DuPont’s prior written consent, that Buyer and its Affiliates shall not communicate regarding any such deduction shall be net DuPont Action with any third party or make any public statement about any DuPont Action, in each case except as required by Law, the rules of any reasonablestock exchange or any Governmental Authority (subject to first consulting with, out of pocket costs or expenses incurred and considering in obtaining such recovery. (g) With respect to good faith the Primary Specified Litigationviews of, the terms and provisions of this Section 6.14 shall supersede the indemnification procedures set forth in Section 9.4. With respect to the Additional Specified Litigations, the indemnification procedures set forth in Section 9.4 shall apply unless otherwise set forth in this Section 6.14. For the avoidance of doubt, the Additional Specified Litigations, DuPont to the extent disclosed on Schedule 3.11legally permissible). Notwithstanding the foregoing, are not subject the provisions of Article VI shall govern with respect to indemnification by Seller under Article IX or otherwise. (h) The Seller shall be entitled to receive any attorneys’ fees awarded by the court of the Eastern District of Texas, and actually collected by the Purchaser or any of its Affiliates, in the event such trial court grants the pending motion for attorneys’ fees in the matter listed in item 1 of Schedule 6.14(B) and the Purchaser shall pay Tax-related matters to the Seller extent any such attorneys’ fees promptly following receipt thereof; provided that (i) the Purchaser shall be entitled to retain any reasonable and documented, out-of-pocket costs or expenses (including reasonable and documented attorneys’ fees) incurred by it provision in connection Article VI is in conflict with pursuing or collecting such award for attorneys’ fees; (ii) the Purchaser shall upon the Seller’s request use commercially reasonable efforts to collect such award of attorneys’ fees (provided that the Purchaser shall be entitled to reimbursement from the Seller for any reasonable and documented, out-of-pocket costs or expenses (including reasonable and documented attorneys’ fees) incurred by it in connection with pursuing or collecting such award for attorneys’ fees); and (iii) the Purchaser shall not settle this matter collectively with another matter in a way that interferes with or jeopardizes the collection of such attorneys’ fees without the Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed, except based on the Seller receiving reasonable and appropriate value in consideration for such attorneys’ fees)Section 5.26.

Specified Litigation. (a) From and after the Closing, (x) each Party shall notify the other Party promptly (and in any event within three (3) Business Days) following the receipt by such Party or any of its Affiliates of any notice, communication, correspondence or documentation from any third party (including a Governmental Authority) in relation With respect to the matter described in Schedule 6.14(A) (the “Primary Specified Litigation”), and (y) the Seller shall notify the Purchaser promptly (and in any event within three (3) Business Days) following the receipt by the Seller or any of its Affiliates of any notice, communication, correspondence or documentation from any third party (including a Governmental Authority) in relation to the matters described in Schedule 6.14(B) (the “Additional Specified Litigations” and, collectively with the Primary Specified Litigation, the “Specified Litigations”). Unless otherwise agreed in writing by the Parties, and subject to this Section 6.14, from and after the Closing, the Purchaser following procedures shall be responsible for and have control over the defense, settlement or any other action in connection with the Specified Litigations; provided, however, that the Purchaser’s responsibility and control over any defense or settlement of any claims relating apply (notwithstanding anything to the Specified Litigations shall contrary contained in no way derogate its rights to indemnification for the Primary Specified Litigation as specifically provided for under this Section 6.14. In connection with the Specified Litigations, from and after the Closing (i) (A) each Party shall, and shall cause their respective Affiliates to, promptly provide the other Party with copies of all correspondence with or from third parties (including any Governmental Authority) relating to the Primary Specified Litigation and, as reasonably requested, with reasonable access during normal business hours to all files or other documents in its or any of its Affiliates’ possession relating to the Primary Specified Litigation (in each case, to the extent not previously provided to the other Party and to the extent such access would not unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operationsAgreement), and including the provisions of Section 9.5): (Ba) Seller or the Seller shall, and Guarantor shall cause its Affiliates to, promptly provide have the Purchaser with copies of all correspondence with or from third parties (including any Governmental Authority) relating right to the Additional Specified Litigations and, as reasonably requested, with reasonable access during normal business hours to all files or other documents in its or any of its Affiliates’ possession relating to such Additional Specified Litigation (in each case, to the extent not previously provided to the other Party, to the extent such access would not unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations and to the extent such correspondence, files or other documents are not in the possession of the Company); (ii) (A) each Party shall, to the extent consistent with applicable Law, notify the other Party promptly following such Party’s or any of its Affiliates’ receipt of any and all subpoenas, Orders and material requests and communications of any third party (including any Governmental Authority) relating to the Primary Specified Litigation, and (B) Seller shall, to the extent consistent with applicable Law, notify the Purchaser promptly following the Seller’s or any of its Affiliates’ receipt of any and all subpoenas, Orders and material requests and communications of any third party (including any Governmental Authority) relating to any Additional Specified Litigation; (iii) the Seller shall and shall cause its Affiliates to reasonably cooperate with the Purchaser and any of its Representatives (including its outside legal counsel) in control the defense of the Specified Litigations, including using reasonable best efforts Litigation unless they have failed or are failing to facilitate defend the claim in good faith. Seller or the Seller Guarantor may settle the Specified Litigation without the prior written consent of the Purchaser engaging if such settlement (a) meets the same counsel engaged requirements of the penultimate sentence of Section 9.5(c) for the settlement of claims by an Indemnifying Party without the Seller prior consent of the Indemnified Party and (b) would not reasonably be expected to have an adverse effect on either (i) Purchaser’s ability to market, sell or distribute any of its Affiliates Product at any time after the Closing with respect thereto, including by providing or (ii) the goodwill or reputation of the Business or the Product at any time after the Closing. The Parties shall cooperate to ensure all waivers and consents required for Purchaser to engage such counsel; (iv) subject to execution of a joint defense agreement between the Seller and the Purchaser in form and substance reasonably acceptable to them, (A) solely communications with respect to the Primary Specified Litigation are conducted in a manner that preserves the attorney-client privilege and common interest privilege to the maximum extent possible. (b) Seller shall take commercially reasonable actions to pursue coverage from the Seller’s insurance carrier under the Seller’s existing insurance policy or policies that covers the Specified Litigation, with the Seller proceeds thereof to paid, first, to Purchaser to reimburse it for any Losses (including Defense Costs) arising from the Specified Litigation and then to the Seller. (c) For purposes of the Specified Litigation, “Losses” shall be entitled mean the aggregate of: (i) any settlement payments due to attend and participate on the counterparty to the Specified Litigation or money damages (including, but not limited to, any substantive calls with outside counsel judgment, fines, penalties, costs, or attorneys’ fees) awarded to the counterparty to the Specified Litigation by a court, in each case to the extent practicablepaid or payable by a Purchaser Indemnified Party, provide input to the Purchaser, directly or through its own legal counsel, on strategic decisions relating to the Primary Specified Litigation plus (including whether to appeal any adverse rulings), which the Purchaser will consider in good faith; provided that, the Purchaser shall make all final decisions relating to the Primary Specified Litigation in its sole discretion; and (Bii) the Purchaser Defense Costs. “Defense Costs” shall keep mean the Seller reasonably informed of the status of the Primary Specified Litigation and shall notify the Seller promptly (and in any event within three (3) Business Days) following any material developments in relation thereto; (v) the Purchaser shall be entitled to change legal counsel for any of the Specified Litigations; provided, that, with respect to the Primary Specified Litigation, the Purchaser agrees to retain the outside legal counsel engaged by the Seller for such matter (the “Incumbent Counsel”) as of the date of this Agreement through the completion of the currently pending appeal to the United States Court of Appeals for the Ninth Circuit; provided further that the Purchaser may, at its sole cost and expense, retain outside legal counsel of its choosing to consult with the Incumbent Counsel with respect to such appeal and the Seller shall direct the Incumbent Counsel to consult in good faith with the Purchaser’s counsel; (vi) with respect to the Additional Specified Litigations, and from and after the completion of the substitution contemplated by Section 6.14(b) with respect to the Primary Specified Litigation, the Purchaser’s counsel shall be the sole counsel of record for such Specified Litigations; and (vii) subject to Section 6.14(f), each of the Seller and its Affiliates and the Purchaser and its Affiliates shall bear its own fees, costs and expenses incurred in connection with the Specified Litigations. Notwithstanding anything in this Agreement to the contrary, the Purchaser and the Seller each agree that the legal counsel of the other Party may maintain a copy of all information, materials and documents that may be required to respond to any requests from any Governmental Authority relating to the Specified Litigations. The rights and obligations of the Parties under this Section 6.14(a) shall be in addition to and not limited by Section 6.8 or Section 6.9. (b) From and after the date of this Agreement through the Closing, the Seller shall use reasonable best efforts to substitute the Company for the Seller as the defendant in the Primary Specified Litigation and the Purchaser shall reasonably cooperate with the Seller in connection therewith. From and after the Closing, each of the Purchaser and the Seller shall use their respective reasonable best efforts to substitute the Company for the Seller as the defendant in the Primary Specified Litigation and shall reasonably cooperate with each other in connection therewith. In the event that substitution is not permitted in the Primary Specified Litigation, and notwithstanding anything to the contrary in this Section 6.14, the Purchaser shall nonetheless be responsible for and have control over the defense, settlement or any other action in connection with the Primary Specified Litigation and Seller will take reasonable steps to ensure Purchaser shall be able to exercise such control. (c) Prior to the Closing Date, the Seller may settle any Additional Specified Litigations, which settlement shall require the Purchaser’s prior written consent; provided that the Seller shall be entitled to reimbursement from the Purchaser for the amount of any monetary settlement and reasonable and documented out-of-pocket costs and expenses paid by the Seller in the negotiation and documentation of such settlement). The Purchaser shall be responsible for any and all costs, expenses (including attorneys’ fees and legal costs), damages or settlements with respect to the Additional Specified Litigations, in each case, incurred following the Closing. The Seller shall not settle the Primary Specified Litigation without the Purchaser’s prior written consent. From and after the Closing, the Purchaser shall not settle the Primary Specified Litigation without the Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). (d) In the event of an adverse ruling in the Primary Specified Litigation, whether rendered prior to or after the date of this Agreement or prior to or after the Closing, the Seller shall pay any bond required in connection with any appeal of such adverse ruling. Nothing in this Section 6.14(d) shall limit the Purchaser’s rights set forth in Section 6.14(a) (including the Purchaser’s right to be responsible for and have control over the defense, settlement or any other action relating to the Primary Specified Litigation). (e) As of the Closing Date, all written communications with counsel, including written communications (prior to or following the Closing) between counsel for the Seller or any of its Affiliates, on the one hand, and the Seller or any of its Affiliates, on the other hand, that relate in any way to the Specified Litigations (collectively, the “Specified Communications”) shall be shared with the Purchaser pursuant to the Common Interest Agreement by and among the Purchaser, the Company and the Seller, dated as of September 29, 2017. As of the Closing Date, as to all Specified Communications, the attorney-client privilege and the expectation of client confidence may be asserted by the Seller, the Purchaser and their respective Affiliates, and the Seller, the Purchaser and their respective Affiliates may use or rely on any of the Specified Communications in any action relating to the Specified Litigations; provided, however, that neither the Seller nor any of its Affiliates may waive, or seek to obtain a waiver of, the attorney-client privilege with respect to such Specified Communications. (f) From and after the Closing, the Seller shall indemnify and hold harmless the Purchaser Indemnified Parties from and against, and compensate and reimburse the Purchaser Indemnified Parties for, any and all losses, damages, costs, fines, judgments, awards, penalties, interest, obligations, payments, settlements, expenses and Liabilities, including actual damages, punitive damages, consequential damages, special damages and diminution in value of the Company and its Subsidiaries as of the date hereof or the Business in connection with the Primary Specified Litigation, together with all reasonable and documented costs and expenses (including reasonable and documented attorneys’ and other legal fees and out-of-pocket expenses), incurred or suffered by the Purchaser Indemnified Parties arising from (including attorneys’, consultants’ and experts’ fees, costs and expenses) in the Primary investigation, settlement, negotiation or defense of the Specified Litigation; provided that . Defense Costs do not include any salaries, benefits or other compensation for purposes of computing such damages there shall be deducted an amount equal to the amount officers or employees of any insurance proceeds, indemnification payments, contribution payments, reimbursements, and Tax benefits actually received by any of the Purchaser Indemnified Party or any of its Affiliates in connection with such damages or the circumstances giving rise thereto; providedParties, however, that any such deduction shall be net of any reasonable, out of pocket costs or expenses incurred in obtaining such recovery. (g) With respect to the Primary Specified Litigation, the terms and provisions of this Section 6.14 shall supersede the indemnification procedures except as otherwise expressly set forth in Section 9.4. With respect to the Additional Specified Litigations, the indemnification procedures set forth in Section 9.4 shall apply unless otherwise set forth in this Section 6.14. For the avoidance of doubt, the Additional Specified Litigations, to the extent disclosed on Schedule 3.11, are not subject to indemnification by Seller under Article IX or otherwiseTransition Services Agreement. (h) The Seller shall be entitled to receive any attorneys’ fees awarded by the court of the Eastern District of Texas, and actually collected by the Purchaser or any of its Affiliates, in the event such trial court grants the pending motion for attorneys’ fees in the matter listed in item 1 of Schedule 6.14(B) and the Purchaser shall pay to the Seller any such attorneys’ fees promptly following receipt thereof; provided that (i) the Purchaser shall be entitled to retain any reasonable and documented, out-of-pocket costs or expenses (including reasonable and documented attorneys’ fees) incurred by it in connection with pursuing or collecting such award for attorneys’ fees; (ii) the Purchaser shall upon the Seller’s request use commercially reasonable efforts to collect such award of attorneys’ fees (provided that the Purchaser shall be entitled to reimbursement from the Seller for any reasonable and documented, out-of-pocket costs or expenses (including reasonable and documented attorneys’ fees) incurred by it in connection with pursuing or collecting such award for attorneys’ fees); and (iii) the Purchaser shall not settle this matter collectively with another matter in a way that interferes with or jeopardizes the collection of such attorneys’ fees without the Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed, except based on the Seller receiving reasonable and appropriate value in consideration for such attorneys’ fees).

Specified Litigation. (a) From and after the ClosingWithout limiting Section 5.10, (x) each Party shall notify the other Party promptly (and in any event within three (3) Business Days) following the receipt by such Party Closing Date, APD shall have exclusive authority and control over the investigation, prosecution, defense and appeal of the Existing APD Actions and all then pending or any of its Affiliates of any notice, communication, correspondence or documentation from any third party (including a Governmental Authority) in relation threatened Actions to the matter described extent relating to or arising in connection with the Excluded Businesses, the Excluded Assets or the Retained Liabilities (other than the Existing APD Actions), including Actions involving the matters set forth on Section 5.29 of the Seller’s Disclosure Schedule 6.14(A) (the each, an “Primary Specified LitigationAPD Action”), and (y) may settle or compromise, or consent to the Seller shall notify the Purchaser promptly (and in any event within three (3) Business Days) following the receipt by the Seller or any of its Affiliates entry of any notice, communication, correspondence or documentation from judgment with respect to any third party (including a Governmental Authority) in relation to such Action without the matters described in Schedule 6.14(B) (the “Additional Specified Litigations” and, collectively with the Primary Specified Litigation, the “Specified Litigations”). Unless otherwise agreed in writing by the Parties, and subject to this Section 6.14, from and after the Closing, the Purchaser shall be responsible for and have control over the defense, settlement or any other action in connection with the Specified Litigationsconsent of Buyer; provided, however, that the Purchaser’s responsibility if both APD (or a Retained Subsidiary) and control over any defense or settlement of any claims relating to the Specified Litigations shall in no way derogate its rights to indemnification for the Primary Specified Litigation as specifically provided for under this Section 6.14. In connection with the Specified Litigations, from and after the Closing Buyer (i) (A) each Party shall, and shall cause their respective Affiliates to, promptly provide the other Party with copies of all correspondence with or from third parties (including any Governmental Authority) relating to the Primary Specified Litigation and, as reasonably requested, with reasonable access during normal business hours to all files or other documents in its or any of its Affiliates’ possession relating Subsidiaries, including any Transferred PMD Company) are named as parties to any APD Action (a “Joint Action”), APD shall not settle such Joint Action without the Primary Specified Litigation written consent of Buyer (in each case, not to the extent not previously provided to the other Party and to the extent be unreasonably withheld) unless such access would not unreasonably interfere with the conduct settlement releases Buyer (or such of its business or unreasonably disrupt its normal operations), and (B) the Seller shall, and shall cause its Affiliates to, promptly provide the Purchaser with copies of all correspondence with or from third parties Subsidiaries (including any Governmental AuthorityTransferred PMD Companies) relating to the Additional Specified Litigations and, named as reasonably requested, with reasonable access during normal business hours to all files or other documents in its or any of its Affiliates’ possession relating to such Additional Specified Litigation (in each case, to the extent not previously provided to the other Party, to the extent such access would not unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations and to the extent such correspondence, files or other documents are not in the possession of the Company); (iiparties) (A) each Party shall, to the extent consistent with applicable Law, notify the other Party promptly following such Party’s or any of its Affiliates’ receipt of any and all subpoenas, Orders and material requests and communications of any third party (including any Governmental Authority) relating to the Primary Specified Litigation, and (B) Seller shall, to the extent consistent with applicable Law, notify the Purchaser promptly following the Seller’s or any of its Affiliates’ receipt of any and all subpoenas, Orders and material requests and communications of any third party (including any Governmental Authority) relating to any Additional Specified Litigation; (iii) the Seller shall and shall cause its Affiliates to reasonably cooperate with the Purchaser and any of its Representatives (including its outside legal counsel) in the defense of the Specified Litigations, including using reasonable best efforts to facilitate the Purchaser engaging the same counsel engaged by the Seller or any of its Affiliates after the Closing with respect thereto, including by providing all waivers and consents required for Purchaser to engage such counsel; (iv) subject to execution of a joint defense agreement between the Seller and the Purchaser in form and substance reasonably acceptable to them, (A) solely with respect to the Primary Specified Litigation, the Seller shall be entitled to attend and participate on any substantive calls with outside counsel to the extent practicable, provide input to the Purchaser, directly or through its own legal counsel, on strategic decisions relating to the Primary Specified Litigation (including whether to appeal any adverse rulings), which the Purchaser will consider in good faith; provided that, the Purchaser shall make all final decisions relating to the Primary Specified Litigation in its sole discretion; and (B) the Purchaser shall keep the Seller reasonably informed of the status of the Primary Specified Litigation and shall notify the Seller promptly (and in any event within three (3) Business Days) following any material developments in relation thereto; (v) the Purchaser shall be entitled to change legal counsel for any of the Specified Litigations; provided, that, with respect to the Primary Specified Litigation, the Purchaser agrees to retain the outside legal counsel engaged by the Seller for such matter (the “Incumbent Counsel”) as of the date of this Agreement through the completion of the currently pending appeal to the United States Court of Appeals for the Ninth Circuit; provided further that the Purchaser may, at its sole cost and expense, retain outside legal counsel of its choosing to consult with the Incumbent Counsel with respect to such appeal and the Seller shall direct the Incumbent Counsel to consult in good faith with the Purchaser’s counsel; (vi) with respect to the Additional Specified Litigations, and from and after the completion of the substitution contemplated by Section 6.14(b) with respect to the Primary Specified Litigation, the Purchaser’s counsel shall be the sole counsel of record for such Specified Litigations; and (vii) subject to Section 6.14(f), each of the Seller and its Affiliates and the Purchaser and its Affiliates shall bear its own fees, costs and expenses incurred in connection with the Specified Litigations. Notwithstanding anything in this Agreement to the contrary, the Purchaser such Joint Action and the Seller each agree that the legal counsel provides relief consisting solely of the other Party may maintain money damages borne by APD (or a copy of all information, materials and documents that may be required to respond to any requests from any Governmental Authority relating to the Specified Litigations. The rights and obligations of the Parties under this Section 6.14(a) shall be in addition to and not limited by Section 6.8 or Section 6.9. (b) From and after the date of this Agreement through the Closing, the Seller shall use reasonable best efforts to substitute the Company for the Seller as the defendant in the Primary Specified Litigation and the Purchaser shall reasonably cooperate with the Seller in connection therewith. From and after the Closing, each of the Purchaser and the Seller shall use their respective reasonable best efforts to substitute the Company for the Seller as the defendant in the Primary Specified Litigation and shall reasonably cooperate with each other in connection therewith. In the event that substitution is not permitted in the Primary Specified Litigation, and notwithstanding anything to the contrary in this Section 6.14, the Purchaser shall nonetheless be responsible for and have control over the defense, settlement or any other action in connection with the Primary Specified Litigation and Seller will take reasonable steps to ensure Purchaser shall be able to exercise such control. (c) Prior to the Closing Date, the Seller may settle any Additional Specified Litigations, which settlement shall require the Purchaser’s prior written consent; provided that the Seller shall be entitled to reimbursement from the Purchaser for the amount of any monetary settlement and reasonable and documented out-of-pocket costs and expenses paid by the Seller in the negotiation and documentation of such settlementRetained Subsidiary). The Purchaser shall be responsible for any and all costs, expenses (including attorneys’ fees and legal costs), damages or settlements with respect to the Additional Specified Litigations, in each case, incurred following the Closing. The Seller shall not settle the Primary Specified Litigation without the Purchaser’s prior written consent. From and after the Closing, the Purchaser shall not settle the Primary Specified Litigation without the SellerWithout APD’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). , Buyer and its Affiliates shall not communicate regarding any APD Action with any third party (dother than Buyer’s or its Affiliates’ attorneys and auditors) In or make any public statement about any APD Action, in each case except as required by Law or any Governmental Authority (subject to first consulting with, and considering in good faith the event of an adverse ruling in views of, APD to the Primary Specified Litigation, whether rendered prior to or after the date of this Agreement or prior to or after extent legally permissible). As soon as practicable following the Closing, the Seller shall pay any bond required in connection with any appeal of such adverse ruling. Nothing in this Section 6.14(d) shall limit the Purchaser’s rights set forth in Section 6.14(a) (including the Purchaser’s right to be responsible for and have control over the defense, settlement or any other action relating to the Primary Specified Litigation). (e) As of the Closing Date, all written communications with counsel, including written communications (prior to or following the Closing) between counsel for the Seller or any of its Affiliates, on the one handAPD shall, and shall cause the Seller or any of Retained Subsidiaries to, use its Affiliates, on the other hand, that relate in any way to the Specified Litigations (collectively, the “Specified Communications”) shall be shared with the Purchaser pursuant to the Common Interest Agreement by and among the Purchaser, the Company and the Seller, dated as of September 29, 2017. As of the Closing Date, as to all Specified Communications, the attorney-client privilege and the expectation of client confidence may be asserted by the Seller, the Purchaser and their respective Affiliates, and the Seller, the Purchaser and their respective Affiliates may use or rely on any of the Specified Communications in any action relating to the Specified Litigations; provided, however, that neither the Seller nor any of its Affiliates may waive, or seek to obtain a waiver of, the attorney-client privilege with respect to such Specified Communications. (f) From and after the Closing, the Seller shall indemnify and hold harmless the Purchaser Indemnified Parties from and against, and compensate and reimburse the Purchaser Indemnified Parties for, any and all losses, damages, costs, fines, judgments, awards, penalties, interest, obligations, payments, settlements, expenses and Liabilities, including actual damages, punitive damages, consequential damages, special damages and diminution in value of the Company and its Subsidiaries as of the date hereof or the Business in connection with the Primary Specified Litigation, together with all reasonable and documented costs and expenses (including reasonable and documented attorneys’ and other legal fees and out-of-pocket expenses), incurred or suffered by the Purchaser Indemnified Parties arising from the Primary Specified Litigation; provided that for purposes of computing such damages there shall be deducted an amount equal to the amount of any insurance proceeds, indemnification payments, contribution payments, reimbursements, and Tax benefits actually received by any Purchaser Indemnified Party or any of its Affiliates in connection with such damages or the circumstances giving rise thereto; provided, however, that any such deduction shall be net of any reasonable, out of pocket costs or expenses incurred in obtaining such recovery. (g) With respect to the Primary Specified Litigation, the terms and provisions of this Section 6.14 shall supersede the indemnification procedures set forth in Section 9.4. With respect to the Additional Specified Litigations, the indemnification procedures set forth in Section 9.4 shall apply unless otherwise set forth in this Section 6.14. For the avoidance of doubt, the Additional Specified Litigations, to the extent disclosed on Schedule 3.11, are not subject to indemnification by Seller under Article IX or otherwise. (h) The Seller shall be entitled to receive any attorneys’ fees awarded by the court of the Eastern District of Texas, and actually collected by the Purchaser or any of its Affiliates, in the event such trial court grants the pending motion for attorneys’ fees in the matter listed in item 1 of Schedule 6.14(B) and the Purchaser shall pay to the Seller any such attorneys’ fees promptly following receipt thereof; provided that (i) the Purchaser shall be entitled to retain any reasonable and documented, out-of-pocket costs or expenses (including reasonable and documented attorneys’ fees) incurred by it in connection with pursuing or collecting such award for attorneys’ fees; (ii) the Purchaser shall upon the Seller’s request use commercially reasonable efforts to collect such award have Buyer, any Transferred PMD Company, any of attorneys’ fees (provided that their respective Subsidiaries and any Buyer Indemnified Parties removed as parties to any APD Action in which they are named parties as soon as is reasonably practicable. Notwithstanding the Purchaser foregoing, the provisions of Article VI shall be entitled exclusively govern with respect to reimbursement from the Seller for any reasonable and documented, outTax-of-pocket costs or expenses (including reasonable and documented attorneys’ fees) incurred by it in connection with pursuing or collecting such award for attorneys’ fees); and (iii) the Purchaser shall not settle this matter collectively with another matter in a way that interferes with or jeopardizes the collection of such attorneys’ fees without the Seller’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed, except based on the Seller receiving reasonable and appropriate value in consideration for such attorneys’ fees)related matters.