Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege. (b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 4 contracts
Samples: Merger Agreement (Monmouth Real Estate Investment Corp), Merger Agreement (Monmouth Real Estate Investment Corp), Merger Agreement (Equity Commonwealth)
Transaction Litigation. (a) In the event that Subject to applicable Law, other than with respect to any stockholder litigation related where Parent is adverse to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall will give Parent the opportunity reasonable opportunity, at Parent’s sole cost and expense, to reasonably participate participate, subject to a customary joint defense agreement, in (but not control) the defense of any action, claim, suit or proceeding against the Company Transaction Litigationor its directors or officers relating to the Merger and the transactions contemplated hereby, and no such settlement will be agreed to or offered without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed); provided, that Parent shall consider not be obligated to consent to any settlement (i) which does not include full release of Parent and its Affiliates or which imposes an injunction or other equitable relief upon Parent or any of its Affiliates (including, after the Effective Time, the Surviving Corporation), or (ii) that would result in good faith the payment by Parent’s advice , the Company or any Subsidiary thereof of any amount in excess of the retention or deductible under any applicable insurance policy of the Company. Subject to applicable Law, other than with respect to such any litigation where the Company Transaction Litigationis adverse to Parent, Parent will give the Company the reasonable opportunity, at the Company’s sole cost and expense, to participate, subject to a customary joint defense agreement, in (but not control) the defense or settlement of any action, claim, suit or proceeding against Parent or its directors or officers relating to the Merger and the transactions contemplated hereby. Prior to the consummation of the Merger, without the prior written consent of the Company, Parent shall not settle any action, claim, suit or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject proceeding related to the provisions Merger and the transactions contemplated hereby unless such settlement provides a full and unconditional release for the Company and each officer and director of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that Company party to such litigation. Each of the Company and Parent agree to provide access to shall, and shall cause their respective Subsidiaries to, cooperate in the defense or settlement of any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to Section 6.15. The parties acknowledge that this Section 6.15 in no way limits the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of parties’ obligations under Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege6.8.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Skyworks Solutions, Inc.), Agreement and Plan of Merger (PMC Sierra Inc), Merger Agreement (Skyworks Solutions, Inc.)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, Subject to the knowledge last sentence of the Companythis Section 8.07, threatened, against the Company or any members each of the Company Board after and Parent shall promptly notify the date hereof and prior other of any stockholder or shareholder demands, litigations, arbitrations or other similar claims, actions, suits or proceedings (including derivative claims) commenced against it, its Subsidiaries and/or its or its Subsidiaries’ respective directors or officers relating to this Agreement or any of the Effective Time transactions contemplated hereby or any matters relating thereto (collectively, “Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation ) and shall keep Parent reasonably the other party informed with respect regarding any Transaction Litigation (including by promptly furnishing to the status thereofother party and such other party’s Representatives such information relating to such Transaction Litigation as may reasonably be requested). The Each of the Company and Parent shall give Parent reasonably cooperate with the opportunity to reasonably participate other in (but not control) the defense or settlement of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or give the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company party the opportunity to reasonably participate in consult with it regarding the defense and settlement of any Parent such Transaction Litigation, shall consider in good faith the Companyother party’s advice with respect to such Parent Transaction Litigation and shall give the other party the opportunity to participate (at the other party’s expense) in (but not control) the defense and settlement of such Transaction Litigation. Prior to the First Effective Time, and other than with respect to any Transaction Litigation where the parties are adverse to each other or in the context of any Transaction Litigation related to or arising out of a Company Acquisition Proposal or a Parent Acquisition Proposal, neither the Company nor any of its Subsidiaries shall not settle or agree offer to settle any Parent Transaction Litigation without the Company’s prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed); provided . Notwithstanding anything to the contrary in this Section 8.07, (a) in the event of any conflict with any other covenant or agreement contained in Section 8.02 that expressly addresses the disclosure subject matter of information in connection therewith this Section 8.07, Section 8.02 shall govern and control, and (b) Section 8.07 shall be subject in addition to and not limit or otherwise modify the provisions of parties’ respective obligations under Section 6.4, including attorney-client privilege 6.02 or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeSection 7.02.
Appears in 3 contracts
Samples: Merger Agreement (Terminix Global Holdings Inc), Merger Agreement (Alexion Pharmaceuticals, Inc.), Merger Agreement (Alexion Pharmaceuticals, Inc.)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof May 4, 2021 and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof May 4, 2021 and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Equity Commonwealth)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger any Ancillary Agreement or the other transactions contemplated hereby or thereby is brought, or, to the knowledge of Acquiror, threatened in writing, against Acquiror or the Board of Directors of Acquiror or the Acquiror Special Committee by any of Acquiror’s shareholders prior to the Closing, Acquiror shall promptly notify the Company of any such litigation and keep the Company reasonably informed with respect to the status thereof. Acquiror shall provide the Company the opportunity to participate in (subject to a customary joint defense agreement), but not control, the defense of any such litigation, shall give due consideration to the Company’s advice with respect to such litigation and shall not settle any such litigation without prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed.
(b) In the event that any litigation related to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby is brought, or, to the knowledge of the Company, threatenedthreatened in writing, against the Company or any members the Board of Directors of the Company Board after by any of the date hereof and Company’s stockholders prior to the Effective Time (“Company Transaction Litigation”)Closing, the Company shall promptly notify Parent Acquiror of any such Company Transaction Litigation litigation and shall keep Parent Acquiror reasonably informed with respect to the status thereof. The Company shall give Parent provide Acquiror the opportunity to reasonably participate in (subject to a customary joint defense agreement), but not control) , the defense of any Company Transaction Litigationsuch litigation, shall consider in good faith Parentgive due consideration to Acquiror’s advice with respect to such Company Transaction Litigation, litigation and shall not settle or agree to settle any Company Transaction Litigation such litigation without Parent’s prior written consent (which of Acquiror, such consent shall not to be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege conditioned or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegedelayed.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 2 contracts
Samples: Business Combination Agreement (Freedom Acquisition I Corp.), Business Combination Agreement (Freedom Acquisition I Corp.)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior Prior to the Effective Time (“Company Transaction Litigation”)Time, the Company shall promptly notify Parent (including providing copies of all pleadings with respect thereto) of all Legal Proceedings against the Company or any such of its Subsidiaries or Affiliates or directors or otherwise relating to, involving or affecting the Company or any of its Subsidiaries or Affiliates, in each case in connection with, arising from or otherwise relating to the Merger or any other transaction contemplated by this Agreement (“Transaction Litigation and Litigation”). The Company shall keep Parent reasonably informed with respect to the status thereof. The Company shall will give Parent the opportunity to reasonably participate in (but not control) the defense defense, prosecution or settlement of, any Transaction Litigation against the Company or any of its Transaction Litigation and consult with Parent with respect to the defense, settlement and prosecution of any Company Transaction Litigation, shall Litigation and will consider in good faith Parent’s advice with respect to such Company Transaction Litigation. The Company may not compromise, and shall not settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding, any Company Transaction Litigation without unless Parent has consented thereto in writing; provided that Parent’s prior written consent (which consent in this clause shall not be unreasonably withheld); required if the settlement involves (I) solely (x) the payment of an aggregate amount not to exceed the amount set forth in Schedule 5.19 of the Company Disclosure Letter and (y) supplemental disclosure (provided that the disclosure of information in connection therewith Parent shall be subject given reasonable opportunity to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that review and comment on any supplemental disclosure and the Company shall consider in good faith any changes thereto proposed by Parent), (II) no admission of wrongdoing or liability, (III) no injunctive or similar relief, (IV) a complete and Parent agree to provide access to any such materials unconditional release by the named plaintiffs of all defendants in such a way that does not jeopardize the application respect of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related all disclosure claims then pending relating to this Agreement, the Merger or the other transactions contemplated by Transactions and (V) the withdrawal or dismissal of all claims and actions then pending relating to this Agreement is broughtAgreement, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege Merger or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeTransactions.
Appears in 2 contracts
Samples: Merger Agreement (Splunk Inc), Merger Agreement (Cisco Systems, Inc.)
Transaction Litigation. (a) In the event that The Company will give Parent prompt notice of any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, Action commenced against the Company or its directors, officers, managers, partners or Affiliates (except in the case of any members of Action commenced by Parent, Merger Sub or their respective Affiliates) relating to this Agreement or the Company Board after the date hereof and prior to the Effective Time Merger (collectively, “Company Transaction Litigation”), . The Company will reasonably consult with Parent regarding the Company shall promptly notify Parent defense or settlement of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect will not compromise, settle, come to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle an arrangement regarding or agree to compromise, settle or come to an arrangement regarding any Company Transaction Litigation or consent to the same, without Parent’s the prior written consent of Parent (which consent shall will not be unreasonably withheld, conditioned or delayed); provided that . In connection with any Transaction Litigation and the disclosure Parties’ performance of information in connection therewith shall be subject their obligations under this Section 5.14, the Parties will enter into a customary common interest or joint defense agreement or implement such other techniques as reasonably required to the provisions of Section 6.4, including preserve any attorney-client privilege or other privilege or the work product doctrineapplicable legal privilege; provided further provided, however, that the Company and Parent agree will not be required to provide access to take any such materials in such a way action that does not jeopardize the application of the attorney-client privilegeit determines, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together consultations with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigationlegal counsel, and shall not settle or agree to settle may result in the loss of any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or applicable legal privilege; provided, that, if any information is withheld pursuant to the work product doctrine; provided further foregoing proviso, the Company will inform Parent as to the general nature of what is being withheld in a manner that the Company and Parent agree to provide access to any such materials determines, after consultation with legal counsel, would not result in such a way that does not jeopardize the application loss of the attorney-client or other legal privilege and the Parties will use reasonable best efforts to enable the Company to provide such information without causing the loss of any attorney-client or other applicable legal privilege. Notwithstanding the foregoing, attorney work product doctrinenone of the Company, the Company Subsidiaries or their respective directors, officers, managers or partners will be required to take any other privilegeaction pursuant to this Section 5.14 that would unreasonably disrupt the operations of the Company or the Company Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Eastman Chemical Co), Agreement and Plan of Merger (TAMINCO Corp)
Transaction Litigation. (a) In the event that Subject to applicable Law, other than with respect to any stockholder litigation related where Parent is adverse to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall will give Parent the opportunity reasonable opportunity, at Parent’s sole cost and expense, to reasonably participate participate, subject to a customary joint defense agreement, in (but not control) the defense of any action, claim, suit or proceeding against the Company Transaction Litigationor its directors or officers relating to the Offer. the Merger or the other transactions contemplated hereby, and no such settlement will be agreed to or offered without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed); provided, that Parent shall consider not be obligated to consent to any settlement (i) which does not include full release of Parent and its Affiliates or which imposes an injunction or other equitable relief upon Parent or any of its Affiliates (including, after the Effective Time, the Surviving Corporation), or (ii) that would result in good faith the payment by Parent’s advice , the Company or any Subsidiary thereof of any amount in excess of the retention or deductible under any applicable insurance policy of the Company. Subject to applicable Law, other than with respect to such any litigation where the Company Transaction Litigationis adverse to Parent, Parent will give the Company the reasonable opportunity, at the Company’s sole cost and shall not settle or agree expense, to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be participate, subject to a customary joint defense agreement, in (but not control) the provisions defense or settlement of Section 6.4any action, including attorney-client privilege claim, suit or other privilege proceeding against Parent or its directors or officers relating to the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this AgreementOffer, the Merger or the other transactions contemplated by this Agreement is brought, or, hereby. Prior to the knowledge of Parent, threatened, against Parent or any members consummation of the Parent Board after Merger, without the date hereof and prior to written consent of the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”)Company, Parent shall promptly notify not settle any action, claim, suit or proceeding related to the Offer, the Merger or the other transactions contemplated hereby unless such settlement provides a full and unconditional release for the Company and each officer and director of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect party to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure litigation. Each of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to shall, and shall cause their respective Subsidiaries to, cooperate in the defense or settlement of any such materials litigation contemplated by this Section 7.14. The parties acknowledge that this Section 7.14 in such a no way that does not jeopardize limits the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeparties’ obligations under Section 7.7.
Appears in 2 contracts
Samples: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Transaction Litigation. (a) In Each of the event that Company, on the one hand, and Parent, on the other hand, shall give the other party prompt notice of any stockholder litigation related or claims commenced on or after the date of this Agreement against the Company or its directors or officers or Parent or its directors or officers, as applicable, relating to this Agreement, the Merger or and the other transactions contemplated by this Agreement is brought(“Transaction Litigation”). In addition, or, to the knowledge each of the Company, threatenedon the one hand, and Parent, on the other hand, agrees to keep the other party reasonably informed on a current basis with respect to any other stockholder litigation or claims against the Company or any members its directors or officers or Parent or its officers and directors, as applicable, that are reasonably likely to affect the Merger and the other transactions contemplated by this Agreement (including the timing of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”Closing), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall (i) give Parent the opportunity to reasonably participate (at Parent’s expense) in (but not control) the defense or settlement of any Company Transaction Litigation, shall consider (ii) give Parent the right to review and comment on all filings or responses to be made by the Company in good faith Parent’s advice connection with respect to such Company any Transaction Litigation, and shall will in good faith take such comments into account, and (iii) not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (consent, which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject , conditioned or delayed. Solely to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further extent that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize Transaction Litigation would reasonably be expected to materially delay or prevent the application ability of Parent or Merger Sub to consummate the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to transactions contemplated by this Agreement, Parent shall use commercially reasonable efforts to give the Merger Company the right to review and comment on all filings or responses to be made by Parent in connection with any such Transaction Litigation, and will in good faith take such comments into account. Notwithstanding the other foregoing, with respect to Transaction Litigation commenced by one or more of Parent’s shareholders that seeks to condition, delay or prevent the parties from consummating the transactions contemplated by this Agreement is brought, or, to and that names the knowledge of Parent, threatened, against Parent Company or any members of the Parent Board after the date hereof and prior to the Effective Time its officers or directors as a party (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Shareholder Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall (i) give the Company the opportunity to participate (at the Company’s expense) in the defense or settlement of any claims brought against the Company or any of its officers or directors in such Parent Shareholder Litigation, and (ii) give the Company the right to review and comment on all filings or responses to be made by Parent in connection with the defense or settlement of any claims brought against the Company or any of its officers or directors in such Parent Shareholder Litigation, and will in good faith take such comments into account; provided, however, that (x) Parent shall be entitled to select legal counsel for the Company in respect of such Parent Shareholder Litigation, which legal counsel shall be reasonably participate in acceptable to the Company, and (y) Parent shall control the defense of any Parent Transaction Litigation, shall consider claims brought against the Company or any of its officers or directors in good faith the Company’s advice with respect to such Parent Transaction LitigationShareholder Litigation unless there is an actual legal conflict that would prohibit the assumption of the defense by Parent under law or bona fide ethical obligation; provided further, and that neither Parent nor the Company shall not settle or agree to settle any claims brought against the Company or any of its officers or directors in such Parent Transaction Shareholder Litigation without the Companyother party’s prior written consent (consent, which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege conditioned or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegedelayed.
Appears in 2 contracts
Samples: Merger Agreement (Nano Dimension Ltd.), Merger Agreement (Desktop Metal, Inc.)
Transaction Litigation. (a) In the event that Subject to applicable Law, other than with respect to any stockholder litigation related where Parent is adverse to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall will give Parent the opportunity reasonable opportunity, at Parent’s sole cost and expense, to reasonably participate participate, subject to a customary joint defense agreement, in (but not control) the defense of any action, claim, suit or proceeding against the Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject its directors or officers relating to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this AgreementOffer, the Merger or the other transactions contemplated by this Agreement is broughthereby, orand no such settlement will be agreed to or offered without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed); provided, that Parent shall not be obligated to the knowledge consent to any settlement (i) which does not include full release of Parent, threatened, against Parent and its Affiliates or which imposes an injunction or other equitable relief upon Parent or any members of its Affiliates (including, after the Effective Time, the Surviving Corporation), or (ii) that would result in the payment by Parent, the Company or any Subsidiary thereof of any amount in excess of the Parent Board after retention or deductible under any applicable insurance policy of the date hereof and prior Company. Subject to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigationapplicable Law, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed other than with respect to any litigation where the status thereof. Company is adverse to Parent, Parent shall will give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigationreasonable opportunity, shall consider in good faith at the Company’s advice with respect sole cost and expense, to such participate, subject to a customary joint defense agreement, in (but not control) the defense or settlement of any action, claim, suit or proceeding against Parent Transaction Litigationor its directors or officers relating to the Offer, and the Merger or the other transactions contemplated hereby. Prior to the consummation of the Merger, without the prior written consent of the Company, Parent shall not settle any action, claim, suit or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject proceeding related to the provisions of Section 6.4Offer, including attorney-client privilege or other privilege the Merger or the work product doctrine; provided further that other transactions contemplated hereby unless such settlement provides a full and unconditional release for the Company and each officer and director of the Company party to such litigation. Each of the Company and Parent agree to provide access to shall, and shall cause their respective Subsidiaries to, cooperate in the defense or settlement of any such materials litigation contemplated by this Section 7.11. The parties acknowledge that this Section 7.11 in such a no way that does not jeopardize limits the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeparties’ obligations under Section 7.7.
Appears in 2 contracts
Samples: Merger Agreement (PARETEUM Corp), Merger Agreement (Ipass Inc)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger Agreement or the other transactions contemplated by this Agreement Transactions is brought, or, to the knowledge of the CompanyRMT Partner’s Knowledge, threatened, against the Company or RMT Partner, any members of the Company RMT Partner Board after or a Significant Stockholder from and following the date hereof and prior to the Effective Time of this Agreement (such litigation, “Company RMT Partner Transaction Litigation”), the Company RMT Partner shall promptly notify Parent Remainco of any such Company RMT Partner Transaction Litigation and shall keep Parent Remainco reasonably informed with respect to the status thereof. The Company RMT Partner shall give Parent the Remainco a reasonable opportunity to reasonably participate in (but not control) the defense or settlement (at Remainco’s sole expense and subject to a customary joint defense agreement) of any Company RMT Partner Transaction Litigation, Litigation and shall consider in good faith ParentRemainco’s advice with respect to such Company RMT Partner Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that RMT Partner shall in any event control such defense in its sole discretion and the disclosure of information to Remainco in connection therewith shall be subject to the provisions of Section 6.48.10; provided, including attorney-client privilege further, that RMT Partner shall not settle or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to settle any such materials in such a way that does not jeopardize the application RMT Partner Transaction Litigation without prior written consent of the attorney-client privilege, attorney work product doctrine, or any other privilegeRemainco.
(b) In the event that any stockholder litigation related to this Agreement, the Merger Agreement or the other transactions contemplated by this Agreement Transactions is broughtbrought or to Remainco’s Knowledge, or, to the knowledge of Parent, is threatened, against Parent Remainco or any members of the Parent Remainco Board after from and following the date hereof of this Agreement and prior to the Effective Time for which a Spinco Entity is liable (“Parent Transaction Litigation” and together with Company Transaction Litigationsuch litigation, “Spinco Transaction Litigation”), Parent Remainco shall promptly notify the Company RMT Partner of any such Parent Spinco Transaction Litigation and shall keep the Company RMT Partner reasonably informed with respect to the status thereof. Parent Remainco shall give the Company the RMT Partner a reasonable opportunity to reasonably participate in the defense or settlement (at RMT Partner’s sole expense and subject to a customary joint defense agreement) of any Parent Spinco Transaction Litigation, Litigation and shall consider in good faith the CompanyRMT Partner’s advice with respect to such Parent Spinco Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that Remainco shall in any event control such defense in its sole discretion and the disclosure of information to RMT Partner in connection therewith shall be subject to the provisions of Section 6.48.10; provided, including attorney-client privilege further, that Remainco shall not settle or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to settle any such materials in such a way that does Spinco Transaction Litigation without prior written consent of RMT Partner (which consent shall not jeopardize the application of the attorney-client privilegebe unreasonably withheld, attorney work product doctrine, conditioned or any other privilegedelayed).
Appears in 2 contracts
Samples: Merger Agreement (At&t Inc.), Merger Agreement (Discovery, Inc.)
Transaction Litigation. The Parties shall use their respective reasonable best efforts to prevent the entry of (aand, if entered, to have vacated, lifted, reversed or overturned) In any Order that results from any shareholder litigation against the Parties or any of their respective directors or officers relating to this Agreement or the Transactions; provided, however, in the event that any stockholder shareholder litigation related to this Agreement, the Merger Agreement or the other transactions contemplated by this Agreement Transactions is brought, or, to the knowledge of the Company’s Knowledge, threatenedthreatened in writing, against the Company or any members of the Company Board after the date hereof of this Agreement and prior to the Effective Time (“Company Transaction Litigation”), ) (a) the Company shall reasonably promptly notify the Parent of any such Company Transaction Litigation and shall keep the Parent reasonably informed with respect to the status thereof. The , (b) the Company shall give the Parent the opportunity to reasonably participate in (but not control) consult with the Company regarding the defense of any Transaction Litigation and (c) the Company Transaction Litigation, (i) shall consider in good faith give due consideration to Parent’s advice with respect to such Company Transaction Litigation, Litigation and (ii) shall not settle or agree to settle any Company Transaction Litigation without the Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that notwithstanding the foregoing clause (c)(ii), the Company may, without Parent’s prior written consent, settle Transaction Litigation to the extent that such settlement only obligates the Company or its Subsidiaries for (A) the issuance of additional disclosure and/or (B) the payment of information money if the amount of money to be paid in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further with such settlement does not exceed any insurance proceeds that the Company and Parent agree reasonably expects to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice receive with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information and any deductible in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegerespect thereof.
Appears in 2 contracts
Samples: Arrangement Agreement (Catamaran Corp), Arrangement Agreement (Unitedhealth Group Inc)
Transaction Litigation. The Company shall promptly (aand in any event within two Business Days) In advise Parent in writing of any Action (including any putative class action or derivative litigation) asserted, threatened in writing or commenced by, on behalf of or in the event that name of, against or otherwise involving the Company, the Board of Directors, any stockholder litigation related committee thereof or any of the Company’s directors or officers relating directly or indirectly to this Agreement, the Merger or any of the other transactions contemplated by hereby, including any such claim or Action based on allegations that the Company’s entry into this Agreement, the terms and conditions of this Agreement is brought, or, to the knowledge or any of the Company, threatened, against transactions contemplated hereby constituted a breach of the Company fiduciary duties of any member of the Board of Directors or any members officer of the Company Board after the date hereof and prior to the Effective Time (any such Action, a “Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation ) and shall keep Parent informed on a reasonably informed with respect to the status thereofprompt basis regarding any such Transaction Litigation. The Company shall give Parent the opportunity opportunity, subject to reasonably a customary joint defense agreement, to (a) participate in (but not control) the defense defense, prosecution, settlement or compromise of any Company Transaction Litigation, and (b) consult with counsel to the Company regarding the defense, prosecution, settlement or compromise with respect to any such Transaction Litigation. For purposes of this Section 5.09, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith Parent’s advice with respect to such faith; provided that the Company Transaction Litigation, and shall not settle or compromise or agree to settle or compromise any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 2 contracts
Samples: Merger Agreement (Timber Pharmaceuticals, Inc.), Merger Agreement (Timber Pharmaceuticals, Inc.)
Transaction Litigation. (a) In the event that Subject to applicable Law, other than with respect to any stockholder litigation related where Parent is adverse to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall will give Parent the opportunity reasonable opportunity, at Parent’s sole cost and expense, to reasonably participate participate, subject to a customary joint defense agreement, in (but not control) the defense of any action, claim, suit or proceeding against the Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject its directors or officers relating to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this AgreementOffer, the Merger or the other transactions contemplated by this Agreement is broughthereby, orand no such settlement will be agreed to or offered without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed); provided, that Parent shall not be obligated to the knowledge consent to any settlement (i) which does not include full release of Parent, threatened, against Parent and its Affiliates or which imposes an injunction or other equitable relief upon Parent or any members of its Affiliates (including, after the Effective Time, the Surviving Corporation), or (ii) that would result in the payment by Parent, the Company or any Subsidiary thereof of any amount in excess of the Parent Board after retention or deductible under any applicable insurance policy of the date hereof and prior Company. Subject to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigationapplicable Law, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed other than with respect to any litigation where the status thereof. Company is adverse to Parent, Parent shall will give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigationreasonable opportunity, shall consider in good faith at the Company’s advice with respect sole cost and expense, to participate, subject to a customary joint defense agreement, in (but not control) the defense or settlement of any action, claim, suit or proceeding against Parent or its directors or officers relating to the Offer, the Merger or the other transactions contemplated hereby. Prior to the consummation of the Merger, without the prior written consent of the Company, Parent shall not settle any action, claim, suit or proceeding related to the Offer, the Merger or the other transactions contemplated hereby unless such settlement provides a full and unconditional release for the Company and each officer and director of the Company party to such Parent Transaction Litigation, and litigation. The Company shall not settle or agree make an offer to settle any Parent Transaction Litigation litigation against the Company or any director by any stockholder relating to this Agreement or the Merger, without the Company’s prior written consent of Parent (which such consent not to be unreasonably withheld, conditioned or delayed); provided, that Parent shall not be unreasonably withheld); provided that the disclosure obligated to consent to any settlement (i) which does not include full release of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege Parent and its Affiliates or which imposes an injunction or other privilege equitable relief upon Parent or any of its Affiliates (including, after the work product doctrine; provided further Effective Time, the Surviving Corporation), or (ii) that would result in the payment by Parent, the Company or any Subsidiary thereof of any amount in excess of the retention or deductible under any applicable insurance policy of the Company. Each of the Company and Parent agree to provide access to shall, and shall cause their respective Subsidiaries to, cooperate in the defense or settlement of any such materials litigation contemplated by this Section 7.12. The parties acknowledge that this Section 7.12 in such a no way that does not jeopardize limits the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeparties’ obligations under Section 7.7(a).
Appears in 2 contracts
Samples: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Transaction Litigation. (a) In The Company shall provide Parent with the event opportunity to participate in the Company’s defense or settlement of any shareholder litigation against the Company and/or its directors or executive officers relating to the transactions contemplated by this Agreement, including the Merger; provided that the Company and Parent will utilize a joint defense agreement or implement such other techniques if doing so would reasonably permit the disclosure of privileged information without jeopardizing such privilege. The Company agrees that it shall not settle or offer to settle any stockholder litigation related commenced prior to or after the date of this Agreement against the Company or its directors, executive officers or similar persons by any shareholder of the Company relating to this Agreement, the Merger Merger, or any other transaction contemplated hereby without the prior written consent of Parent, except for such settlements or offers of settlement that would not require out-of-pocket expenditures by Parent or the Company or any of their respective Subsidiaries (in each case except for amounts paid as part of any self-insured retention) and that do not involve any injunctive or other non-monetary relief (except for customary supplemental disclosure) or the admission of wrongdoing.
(b) Parent shall provide the Company with the opportunity to participate in Parent’s defense or settlement of any shareholder litigation against Parent and/or its directors or executive officers relating to the transactions contemplated by this Agreement is broughtAgreement, or, to including the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld)Merger; provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree will utilize a joint defense agreement or implement such other techniques if doing so would reasonably permit the disclosure of privileged information without jeopardizing such privilege. Parent agrees that it shall not settle or offer to provide access settle any litigation commenced prior to any such materials in such a way that does not jeopardize or after the application date of the attorney-client privilegethis Agreement against Parent or its directors, attorney work product doctrine, executive officers or any other privilege.
(b) In the event that similar persons by any stockholder litigation related of Parent relating to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrineMerger, or any other privilegetransaction contemplated hereby without the prior written consent of the Company, except for such settlements that would not materially impair, delay or prevent the consummation of the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Alcoa Inc.), Merger Agreement (Rti International Metals Inc)
Transaction Litigation. (a) In Each of the event that Company, on the one hand, and Parent, on the other hand, shall give the other party prompt notice of any stockholder litigation related or claims commenced on or after the date of this Agreement against the Company or its directors or officers or Parent or its directors or officers, as applicable, relating to this Agreement, the Merger or and the other transactions contemplated by this Agreement is brought(“Transaction Litigation”). In addition, or, to the knowledge each of the Company, threatenedon the one hand, and Parent, on the other hand, agrees to keep the other party reasonably informed on a current basis with respect to any other stockholder litigation or claims against the Company or any members its directors or officers or Parent or its officers and directors, as applicable, that are reasonably likely to affect the Merger and the other transactions contemplated by this Agreement (including the timing of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”Closing), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall (a) give Parent the opportunity to reasonably participate (at Parent’s expense) in (but not control) the defense or settlement of any Company Transaction Litigation, shall consider (b) give Parent the right to review and comment on all filings or responses to be made by the Company in good faith Parent’s advice connection with respect to such Company any Transaction Litigation, and shall will in good faith take such comments into account, and (c) not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (consent, which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject , conditioned or delayed. Solely to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further extent that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize Transaction Litigation would reasonably be expected to materially delay or prevent the application ability of Parent or Merger Sub to consummate the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to transactions contemplated by this Agreement, Parent shall use commercially reasonable efforts to give the Merger Company the right to review and comment on all filings or responses to be made by Parent in connection with any such Transaction Litigation, and will in good faith take such comments into account. Notwithstanding the other foregoing, with respect to Transaction Litigation commenced by one or more of Parent’s shareholders that seeks to condition, delay or prevent the parties from consummating the transactions contemplated by this Agreement is brought, or, to and that names the knowledge of Parent, threatened, against Parent Company or any members of the Parent Board after the date hereof and prior to the Effective Time its officers or directors as a party (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Shareholder Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall (i) give the Company the opportunity to participate (at the Company’s expense) in the defense or settlement of any claims brought against the Company or any of its officers or directors in such Parent Shareholder Litigation, and (ii) give the Company the right to review and comment on all filings or responses to be made by Parent in connection with the defense or settlement of any claims brought against the Company or any of its officers or directors in such Parent Shareholder Litigation, and will in good faith take such comments into account; provided, however, that (x) Parent shall be entitled to select legal counsel for the Company in respect of such Parent Shareholder Litigation, which legal counsel shall be reasonably participate in acceptable to the Company, and (y) Parent shall control the defense of any Parent Transaction Litigation, shall consider claims brought against the Company or any of its officers or directors in good faith the Company’s advice with respect to such Parent Transaction LitigationShareholder Litigation unless there is an actual legal conflict that would prohibit the assumption of the defense by Parent under law or bona fide ethical obligation; provided, and further, that neither Parent nor the Company shall not settle or agree to settle any claims brought against the Company or any of its officers or directors in such Parent Transaction Shareholder Litigation without the Companyother party’s prior written consent (consent, which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege conditioned or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegedelayed.
Appears in 2 contracts
Samples: Merger Agreement (Nano Dimension Ltd.), Merger Agreement (Markforged Holding Corp)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, Prior to the knowledge earlier of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”)or the date of the valid termination of this Agreement pursuant to Section 7.1, the Company shall promptly notify Parent of all Legal Proceedings commenced or threatened in writing against the Company or any such of the Company Subsidiaries, in each case in connection with, arising from or otherwise relating to the Merger or any of the other Transactions (“Transaction Litigation Litigation”) (including by providing copies of all pleadings with respect thereto) and shall thereafter keep Parent reasonably informed with respect to the status thereof. The Company shall (a) give Parent the opportunity (at Parent’s sole expense and subject to reasonably a customary joint defense agreement) to participate in (but not control) the defense defense, settlement or prosecution of any Company Transaction Litigation; and (b) keep Parent reasonably apprised on a prompt basis of proposed strategy and other significant decisions with respect to any Transaction Litigation and consult with Parent with respect to the defense, shall consider settlement and prosecution of any Transaction Litigation. Further, the Company may not compromise, settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding, any Transaction Litigation unless Parent has consented thereto in good faith Parent’s advice writing (which consent will not be unreasonably withheld, conditioned or delayed). For purposes of this Section 5.10, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise affected), and Parent may offer comments or suggestions with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall will consider in good faith the Company’s advice with respect to faith, but will not be afforded any decision-making power or other authority over such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without except for the Company’s prior written settlement or compromise consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeset forth above.
Appears in 2 contracts
Samples: Merger Agreement (Alimera Sciences Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company’s Knowledge, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, Litigation and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) consent. In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent’s Knowledge, threatened, against Parent or any members of the Parent Board or the Special Committee after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, Litigation and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the consent. The Company and Parent agree to provide access cooperate with each other with respect to the defense and settlement of any Transaction Litigation. Without otherwise limiting the members of the Special Committee’s rights with regards to counsel, following the Effective Time, the members of the Special Committee with rights to indemnification from Parent shall be entitled to continue to retain Xxxxxxx Procter LLP or such other counsel selected by such members of the Special Committee to defend the members of the Special Committee with respect to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeParent Transaction Litigation.
Appears in 2 contracts
Samples: Merger Agreement (NantKwest, Inc.), Merger Agreement (Cambridge Equities, LP)
Transaction Litigation. Subject to entry into a customary joint defense agreement, the Company shall give Parent the opportunity to consult with the Company and participate in the defense or settlement of any shareholder litigation against the Company, any Company Subsidiary or their respective directors or officers (aeach, a “Company Party”) In the event that any stockholder litigation related relating to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge Transactions. None of the Company, threatened, against the any Company Subsidiary or any members Representative of the Company Board after the date hereof and prior shall compromise, settle or come to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of an arrangement regarding any such Company Transaction Litigation and shareholder litigation, in each case unless Parent shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate have consented in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent writing (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the Company may compromise, settle or come to an agreement regarding shareholder litigation made or pending against a Company Party, if each of the following conditions are met: (i) the resolution of all such litigation requires payment from the Company or any of the Company Subsidiaries or Representatives in an amount not to exceed the amount set forth in Section 6.12 of the Company Disclosure Schedule or the provision of disclosures to the shareholders of the Company relating to the Merger (provided that Parent shall be given reasonable opportunity to review and comment on any supplemental disclosure and the Company shall consider in good faith any reasonable changes thereto proposed by Parent); (ii) the settlement provides for no injunctive or similar relief prohibiting or mandating certain action by the Company, Parent, Merger Sub, Guarantor, the Surviving Corporation or any of information their respective Affiliates, Subsidiaries or Representatives; (iii) the settlement provides that Parent and its Subsidiaries and Representatives are released from all liability in connection therewith shall be subject with prejudice; (iv) none of Parent, Merger Sub, the Company, and their respective Subsidiaries and Representatives are required to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to admit any such materials in such a way that does not jeopardize the application wrongdoing as part of the attorney-client privilegesettlement, attorney work product doctrine, and (v) the withdrawal or any other privilege.
dismissal (bwith prejudice) In the event that any stockholder litigation related of all shareholder claims and actions then pending relating to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeTransactions.
Appears in 2 contracts
Samples: Merger Agreement (Peak Resorts Inc), Merger Agreement (Vail Resorts Inc)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the The Company shall promptly notify advise Parent in writing of any such Company Transaction Litigation and shall keep Parent informed on a reasonably informed with respect to the status thereofprompt basis regarding any such Transaction Litigation. The Company shall give Parent the opportunity to reasonably (a) participate in (but not control) the defense of any Company Transaction Litigation, and (b) consult with counsel to the Company regarding the defense, settlement or compromise with respect to any such Transaction Litigation. For purposes of this Section 6.10, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith Parent’s advice with respect to faith, but Parent will not be afforded any decision making power or other authority over such Company Transaction Litigation, and ; provided that the Company shall not settle or compromise or agree to settle or compromise any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided provided, further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not may settle or agree to settle any Parent Transaction Litigation without the CompanyParent’s prior written consent if such settlement or compromise (which consent shall not be unreasonably withheld); provided that i) includes an unconditional release of the disclosure Parent Parties and their directors, officers, employees, agents and Affiliates from all liability in respect of information in connection therewith shall be subject to the provisions of Section 6.4such claim, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that (ii) does not jeopardize the application of the attorney-client privilege, attorney work product doctrineinclude any statement as to, or any admission of, fault, culpability or a failure to act on the part of the any Company Party, Parent Party or any of their respective directors, officers, employees, agents or Affiliates, (iii) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of any Parent Party or any of its Subsidiaries (including the Surviving Company or the Acquired Companies following the Effective Time), and (iv) consists solely of the payment of monetary relief that is either paid in full prior to, or reserved against in, the calculation of the Closing Dividend Amount and would not provide for any other privilegeLiabilities or restrictions on the business of the Company. Following the Effective Time, the Indemnified Parties may continue to retain counsel retained prior to the Effective Time to defend any Transaction Litigation; provided, however, that, in no event shall Parent be required to retain more than one pre-Effective Time counsel for all the Indemnified Parties as a group, unless required by conflicts of interest between or among the Indemnified Parties.
Appears in 2 contracts
Samples: Merger Agreement (Wheeler Real Estate Investment Trust, Inc.), Merger Agreement (Cedar Realty Trust, Inc.)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior Prior to the Effective Time (“Company Transaction Litigation”)Time, the Company shall promptly notify Parent of all Legal Proceedings commenced or threatened against the Company or any such Company of its Subsidiaries or Affiliates, in each case in connection with, arising from or otherwise relating to the Merger or any other transaction contemplated by this Agreement (“Transaction Litigation Litigation”) (including by providing copies of all pleadings with respect thereto) and shall thereafter keep Parent reasonably informed with respect to the status thereof. The Company shall (a) give Parent the opportunity to reasonably participate in (but not control) the defense defense, settlement or prosecution of any Company Transaction Litigation; and (b) consult with Parent with respect to the defense, shall consider settlement and prosecution of any Transaction Litigation. Further, the Company may not compromise, settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding, any Transaction Litigation unless Parent has consented thereto in good faith Parent’s advice writing (which consent will not be unreasonably withheld, conditioned or delayed). For purposes of this Section 7.9, “participate” means that Parent will be kept apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise affected), and Parent may offer comments or suggestions with respect to such Company Transaction Litigation, and but will not be afforded any decision-making power or other authority over such Transaction Litigation except for the settlement or compromise consent set forth above. For the avoidance of doubt, this Section 7.9 shall not settle or agree apply to settle any Company litigation (including Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that Litigation) between the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize its Affiliates, on the application of the attorney-client privilegeone hand, attorney work product doctrineand Parent, or any other privilege.
(b) In the event that any stockholder litigation related to this AgreementMerger Sub and their Affiliates, the Merger or on the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegehand.
Appears in 2 contracts
Samples: Merger Agreement (Rofin Sinar Technologies Inc), Merger Agreement (Coherent Inc)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the The Company shall promptly notify Parent of any such stockholder litigation arising from this Agreement or the Merger that is brought against the Company or members of the Company Board (“Transaction Litigation Litigation”) and shall keep Parent reasonably informed with respect to regarding any Transaction Litigation. Without limiting the status thereof. The preceding sentence, the Company shall give Parent the opportunity right to reasonably participate (a) review and comment in (but not control) advance on all Filings or responses to be made by the defense of Company in connection with any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and the Company shall consider any such comments in good faith, (b) consult on any settlement, understanding or other agreement with respect to any Transaction Litigation, and the Company shall consider any suggestions of Parent during such consultation in good faith, and (c) participate in (at Parent’s sole cost), but not settle control, the defense of such Transaction Litigation, and participate in any negotiation or agree mediation with respect to settle any Company settlement, understanding or other agreement with respect to any Transaction Litigation Litigation; provided, however, that, without Parent’s prior written consent (consent, which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege conditioned or other privilege or the work product doctrine; provided further that delayed, the Company and Parent agree shall not offer to provide access make or make any payment with respect to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep not enter into any settlement, understanding or other agreement relating to any Transaction Litigation, except that the Company reasonably informed shall (i) be permitted to offer to make or make any payment with respect to the status thereof. Parent shall give the Company the opportunity any Transaction Litigation and to reasonably participate in the defense of enter into any Parent settlement, understanding or other agreement relating to any Transaction Litigation, shall consider if the terms thereof, in good faith the Company’s advice with respect to such Parent Transaction Litigationaggregate, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject are no less favorable to the provisions Company that those described in Section 6.06 of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company Disclosure Letter and (ii) keep Parent agree reasonably informed as to provide access to the status of any such materials in such a way that does not jeopardize the application offer or payment pursuant to clause (i) of the attorney-client privilege, attorney work product doctrine, or any other privilegethis proviso.
Appears in 1 contract
Samples: Merger Agreement (Schulman a Inc)
Transaction Litigation. (a) In Prior to the event that Effective Time, the Company shall provide Parent with prompt notice of any stockholder shareholder litigation related or claim against the Company and/or its directors or officers relating to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”) (including by providing copies of all pleadings with respect thereto), the . The Company shall promptly notify Parent control the defense, settlement (subject to the limitations in the following sentence) or prosecution of any such Company Transaction Litigation and the Company shall keep allow Parent reasonably informed to participate in and shall consult with Parent with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense defense, settlement and prosecution of any Company Transaction Litigation, Litigation and shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation. The Company may not compromise, and shall not settle or come to an arrangement regarding, or offer or agree to compromise, settle or come to an arrangement regarding, any Company Transaction Litigation without Parent’s the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that provided, however, if any Company Transaction Litigation continues after the disclosure of information in connection therewith shall be subject Effective Time, the Company’s pre-Effective Time directors and officers may continue to retain the same counsel engaged prior to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeEffective Time with respect thereto.
(b) In Prior to the event that Effective Time, Parent shall provide the Company with prompt notice of any stockholder litigation related or claim against Parent and/or its directors or officers relating to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together ”) (including by providing copies of all pleadings with Company Transaction Litigation, “Transaction Litigation”respect thereto), . Parent shall promptly notify control the Company defense, settlement (subject to the limitations in the following sentence) or prosecution of any such Parent Transaction Litigation and Parent shall keep consult with the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense defense, settlement and prosecution of any Parent Transaction Litigation, Litigation and shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation. Parent may not compromise, and shall not settle or come to an arrangement regarding, or offer or agree to compromise, settle or come to an arrangement regarding, any Parent Transaction Litigation that would prevent or materially delay or impair the consummation of the Merger without the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed); provided that . If any litigation or claim meets the disclosure definition of information in connection therewith both Company Transaction Litigation and Parent Transaction Litigation, it shall be subject treated as Parent Transaction Litigation, unless such litigation or claim against Parent and/or its directors or officers is only with respect to the provisions of Section 6.4aiding and abetting or similar theories, including attorney-client privilege in which case such litigation or other privilege or the work product doctrine; provided further that the claim shall be treated as Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeTransaction Litigation.
Appears in 1 contract
Samples: Merger Agreement (KMG Chemicals Inc)
Transaction Litigation. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the (a1) In the event that any stockholder litigation related termination of this Agreement pursuant to this AgreementArticle VIII and (2) Effective Time, the Merger or the other transactions contemplated by this Agreement is brought, Company will provide Parent with prompt notice of all Transaction Litigation commenced or, to the knowledge Knowledge of the Company, threatened, against the Company or any members Parent, threatened (including by providing copies of the Company Board after the date hereof all pleadings with respect thereto) and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. Notwithstanding anything to the contrary in Section 9.2, the notice contemplated by the prior sentence will only be delivered to counsel to Parent and may be delivered by email. The Company shall will (a) give Parent the opportunity to reasonably participate in (but not control) the defense defense, settlement or prosecution of any Company Transaction Litigation; (b) consult with Parent with respect to the defense, shall settlement and prosecution of any Transaction Litigation; and (c) consider in good faith Parent’s advice with respect to such Company any Transaction Litigation. The Company may not compromise, and shall not settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding, any Company Transaction Litigation without Parent’s prior written consent unless Parent has consented thereto in writing (which consent shall will not be unreasonably withheld, conditioned or delayed); provided that . Without otherwise limiting the disclosure of information in connection therewith Indemnified Persons’ rights with regard to the right to counsel, following the Effective Time, the Indemnified Persons shall be subject entitled to the provisions of Section 6.4, including attorney-client privilege continue to retain Gxxxxxx Procter LLP or such other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any counsel selected by such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and Indemnified Persons prior to the Effective Time (“Parent to defend any Transaction Litigation” and together with Company Transaction Litigation. For purposes of this Section 6.14, “Transaction Litigation”), participate” means that Parent shall promptly notify the Company will be kept apprised of any such Parent Transaction Litigation proposed strategy and shall keep the Company reasonably informed other significant decisions with respect to the status thereof. Parent shall give Transaction Litigation by the Company (to the opportunity to reasonably participate in extent that the defense of any attorney-client privilege between the Company and its counsel is not undermined or otherwise affected), and Parent Transaction Litigation, shall consider in good faith the Company’s advice may offer comments or suggestions with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall but will not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorneyafforded any decision-client privilege making power or other privilege authority over such Transaction Litigation except for the settlement or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegecompromise consent set forth above.
Appears in 1 contract
Samples: Merger Agreement (Globalscape Inc)
Transaction Litigation. The Company shall promptly (aand in any event, within two (2) In Business Days) notify Bidco in writing of any shareholder demands or Actions (including derivative claims) commenced against any member of the Company Group and/or their respective directors or officers relating to any Scheme Documentation or the Transaction (collectively, “Transaction Litigation”) and shall keep Bidco informed on a reasonably current basis regarding any Transaction Litigation, including with respect to any proposed strategy or significant decisions related thereto (including by promptly furnishing to Bidco and its Representatives such information relating to such Transaction Litigation as may reasonably be requested by Bidco and that would not reasonably be expected to result in the waiver of attorney client or other applicable legal privilege); provided, that the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent that does not result in a loss of such legal privilege and in the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”)its Subsidiaries does not provide access or information in reliance on this clause, the Company shall promptly notify Parent provide notice to Bidco that information is being withheld. Other than to the extent such Transaction Litigation relates to an Acquisition Proposal in respect of which the Company determines the Company and Bidco have adverse interests, the Company shall (i) give Bidco the opportunity to consult with it regarding the defense and settlement of any such Company Transaction Litigation, (ii) give Bidco the opportunity to review and comment on filings and responses related to any Transaction Litigation and shall keep Parent reasonably informed consider in good faith Bidco’s comments, (iii) consider in good faith Bidco’s advice with respect to the status thereof. The Company shall such Transaction Litigation and (iv) give Parent Bidco the opportunity to reasonably participate (at Bidco’s expense) in (but not control) the defense and settlement of any Company such Transaction Litigation. Prior to the Effective Time, no member of the Company Group shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree offer to settle any Company Transaction Litigation without Parent’s the prior written consent of Bidco (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 1 contract
Samples: Transaction Agreement (Atlantica Sustainable Infrastructure PLC)
Transaction Litigation. (a) In During the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”)Pre-Closing Period, the Company shall shall, as promptly as practicable, but in any event within two (2) business days after obtaining knowledge thereof, notify Parent of any such Company Transaction Litigation (including by providing available copies of pleadings with respect thereto), and shall keep Parent reasonably informed with respect to the status thereof. The Company shall control any Transaction Litigation; provided that the Company will: (a) give Parent the reasonable opportunity to reasonably participate in (but not control) the defense defense, settlement, or prosecution of any Company Transaction Litigation; (b) reasonably consult with Parent with respect to the defense, shall settlement and prosecution of any Transaction Litigation; and (c) consider in good faith Parent’s advice with respect to such Company any Transaction Litigation. The Company may not compromise, and shall not settle settle, or agree come to settle an arrangement regarding any Company Transaction Litigation without Parent’s prior written consent unless Parent has consented thereto in writing (which consent shall not be unreasonably withheld, conditioned, or delayed). For purposes of this Section 6.05, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that, based on the advice of outside counsel, such participation would not waive the attorney-client privilege between the Company and its counsel; provided it being agreed that the disclosure Company will notify Parent of the Company’s determination that such participation would waive privilege, and thereafter the Company will cooperate with Parent and use commercially reasonable efforts to develop alternative methods of providing information in connection therewith to maintain Parent’s participation rights without any loss of privilege), and Parent may offer comments or suggestions with respect to such Transaction Litigation, but will not be afforded any decision-making power or other authority over such Transaction Litigation, except for the compromise, settlement or consent arrangement set forth above. For the avoidance of doubt, the provisions of this Section 6.05 shall be subject to not limit, affect or modify the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege6.02.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 1 contract
Samples: Merger Agreement (Catalent, Inc.)
Transaction Litigation. The Company shall give prompt notice to Parent Holdco and Parent, and Parent Holdco and Parent shall give prompt notice to the Company, in each case, within two (a2) In the event that Business Days, of any stockholder litigation related Actions commenced against such party or any of its Affiliates or Representatives in connection with, arising from or relating to this Agreement, the Merger Agreement or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company ) (including by providing copies of any such Parent Transaction Litigation all pleadings with respect thereto) and shall thereafter keep the Company other party promptly and reasonably informed with respect to the status thereof. Parent Holdco and Parent shall give have the Company the opportunity right to reasonably participate in the defense defense, settlement or prosecution of any Transaction Litigation and the Company shall consult with Parent Holdco and Parent with respect to the defense, settlement and prosecution of any Transaction Litigation. For purposes of this Section 5.12, “participate” means that (i) the Company shall provide Parent Holdco and Parent (and their outside counsel) an opportunity to review and to propose comments to all filings or responses to be made by the Company in connection with any Transaction Litigation commenced, or to the Knowledge of the Company, threatened in writing, (ii) the Company will keep Parent Holdco and Parent reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise affected), and (iii) the Company shall consider in good faith the Company’s advice any comments or suggestions of Parent Holdco and Parent with respect to such Parent Transaction Litigation, and . The Company shall not settle or agree to settle compromise any Parent Transaction Litigation without the Company’s prior written consent of Parent (which such consent shall not to be unreasonably withheld, conditioned or delayed); provided that the disclosure of information in connection therewith shall be subject , except (i) to the provisions extent such settlement is fully covered by the Company’s insurance policies (other than any applicable deductible) or (ii) such settlement relates solely to the provision of Section 6.4additional disclosure in the Proxy Statement, including attorney-client privilege but in each case only if such settlement would not result in the imposition of any restriction on the business or other privilege or the work product doctrine; provided further that operations of the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeof its Affiliates.
Appears in 1 contract
Samples: Merger Agreement (Global Brass & Copper Holdings, Inc.)
Transaction Litigation. (a) In Prior to the event that any stockholder litigation related to this AgreementCompany Merger Effective Time, the Merger or Company and Parent shall promptly notify the other Party of all notices and other communications received by the Company or its Subsidiaries or Parent, as applicable, from any Governmental Entity in connection with the Mergers or any other transaction contemplated by this Agreement or from any Person alleging that the consent of such Person is required in connection with the transactions contemplated by this Agreement is broughtAgreement, or, if the subject matter of such communication or the failure of such party to the knowledge of obtain such consent could be material to the Company, threatened, against its Subsidiaries or Parent. Prior to the Company or any members of the Company Board after the date hereof and prior to the Merger Effective Time (“Company Transaction Litigation”)Time, the Company shall promptly notify Parent of all civil, criminal or administrative actions, suits, claims, hearings, arbitrations, investigations or other proceedings commenced or threatened against the Company or any such of its Subsidiaries or the Company Board, or any committee thereof, in each case in connection with, arising from or otherwise relating to the Mergers or any other transaction contemplated by this Agreement (“Transaction Litigation Litigation”) (including by providing copies of all pleadings with respect thereto) and shall thereafter keep Parent reasonably informed with respect to the status thereof. The Company shall (a) give Parent the opportunity to reasonably participate in (but not control) the defense defense, settlement or prosecution of any Company Transaction Litigation and (b) consult with Parent with respect to the defense, settlement and prosecution of any Transaction Litigation. For purposes of this Section 6.13, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith Parent’s advice with respect to faith, but Parent will not be afforded any decision making power or other authority over such Company Transaction Litigation, and ; provided that no settlement shall be offered or entered into or payment made without the consent of Parent (not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 1 contract
Transaction Litigation. (a) In Subject to applicable Law, the event that Company shall promptly notify Parent, and Parent shall promptly notify the Company, of any stockholder litigation related to this Agreementdemands, the Merger litigations, arbitrations or the other transactions contemplated by this Agreement is brought, similar actions (including derivative claims) commenced or, to the knowledge of the Company, threatened, against the Company or Parent, threatened against any members Party hereto or any director or officer thereof relating to this Agreement or any of the Company Board after Transactions (collectively, the date hereof and prior to the Effective Time (“Company Transaction Litigation”)) and shall keep each other promptly and reasonably informed regarding any Transaction Litigation. Subject to applicable Law, the Company and Parent shall promptly notify Parent cooperate with the other in the defense or settlement of any Transaction Litigation, at each Party’s sole cost and expense, and shall in good faith consult with each other on a regular basis regarding the defense or settlement of such Transaction Litigation. The Company and Parent shall afford each other a reasonable opportunity to review and comment on filings and responses with respect to such Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parenteach other’s advice with respect to such Company Transaction Litigation, and but only if it is not reasonably determined by either of the Parties, upon the advice of counsel, that doing so could result in the loss of the ability to successfully assert attorney-client, work product or similar legal privileges. Subject to applicable Law, none of the Company, Parent or any of their respective Subsidiaries shall not settle or agree offer to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent of Parent or the Company, as applicable (which such consent not to be unreasonably withheld, conditioned or delayed); provided, however, that Parent shall not be unreasonably withheld); provided obligated to consent to any settlement that does not include a full release of Parent and its Affiliates or that imposes equitable relief upon Parent or its Affiliates (including, after the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4Effective Time, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and its Subsidiaries), and, if applicable, Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeControl Persons and Parent Related Persons.
Appears in 1 contract
Samples: Merger Agreement (National Western Life Group, Inc.)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger Agreement or the other transactions contemplated by this Agreement Transactions is brought, or, to the knowledge of the CompanyParent’s Knowledge, threatened, against the Company or Parent, any members of the Company Parent’s Board after the date hereof and prior or any party to the Effective Time Parent Support Agreement (“Company Transaction Litigation”)such litigation, the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the a reasonable opportunity to reasonably participate in the defense or settlement (at the Company’s sole expense and subject to a customary joint defense agreement) of any Parent Transaction Litigation, Litigation and shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation; provided that Parent shall in any event control such defense in its sole discretion and the disclosure of information to the Company in connection therewith shall be subject to the provisions of Section 5.9; provided, and further, that Parent shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed).
(b) In the event that any litigation related to this Agreement or the Transactions is brought or to the Company’s Knowledge, is threatened, against the Company, any members of the Company’s Board or any party to a Support and Joinder Agreement from and following the date of this Agreement and prior to the Effective Time (such litigation, “Company Transaction Litigation”), the Company shall promptly notify Parent of such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent a reasonable opportunity to participate in the defense or settlement (at Parent’s sole expense and subject to a customary joint defense agreement) of any Company Transaction Litigation and shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation; provided that the Company shall in any event control such defense in its sole discretion and the disclosure of information to Parent in connection therewith shall be subject to the provisions of Section 6.45.9; provided, including attorney-client privilege or other privilege or the work product doctrine; provided further further, that the Company and Parent shall not settle or agree to provide access to settle any such materials in such a way that does Company Transaction Litigation without prior written consent of Parent or (which consent shall not jeopardize the application of the attorney-client privilegebe unreasonably withheld, attorney work product doctrine, conditioned or any other privilegedelayed).
Appears in 1 contract
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger Agreement or the other transactions contemplated by this Agreement Transactions is brought, or, to the knowledge of the CompanyRMT Partner’s Knowledge, threatened, against the Company or RMT Partner, any members of the Company RMT Partner Board after from and following the date hereof and prior to the Effective Time of this Agreement (such litigation, “Company RMT Partner Transaction Litigation”), the Company RMT Partner shall promptly notify Parent Remainco of any such Company RMT Partner Transaction Litigation and shall keep Parent Remainco reasonably informed with respect to the status thereof. The Company RMT Partner shall give Parent the Remainco a reasonable opportunity to reasonably participate in (but not control) the defense or settlement (at Remainco’s sole expense and subject to a customary joint defense agreement) of any Company RMT Partner Transaction Litigation, Litigation and shall consider in good faith ParentRemainco’s advice with respect to such Company RMT Partner Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that RMT Partner shall in any event control such defense in its sole discretion and the disclosure of information to Remainco in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine8.10; provided further further, that the Company and Parent RMT Partner shall not settle or agree to provide access to settle any such materials in such a way that does RMT Partner Transaction Litigation without prior written consent of Remainco (which consent shall not jeopardize the application of the attorney-client privilegebe unreasonably withheld, attorney work product doctrine, conditioned or any other privilegedelayed).
(b) In the event that any stockholder litigation related to this Agreement, the Merger Agreement or the other transactions contemplated by this Agreement Transactions is broughtbrought or to Remainco’s Knowledge, or, to the knowledge of Parent, is threatened, against Parent Remainco or any members of the Parent Remainco Board after from and following the date hereof of this Agreement and prior to the First Effective Time for which a Spinco Entity is liable (“Parent Transaction Litigation” and together with Company Transaction Litigationsuch litigation, “Spinco Transaction Litigation”), Parent Remainco shall promptly notify the Company RMT Partner of any such Parent Spinco Transaction Litigation and shall keep the Company RMT Partner reasonably informed with respect to the status thereof. Parent Remainco shall give the Company the RMT Partner a reasonable opportunity to reasonably participate in the defense or settlement (at RMT Partner’s sole expense and subject to a customary joint defense agreement) of any Parent Spinco Transaction Litigation, Litigation and shall consider in good faith the CompanyRMT Partner’s advice with respect to such Parent Spinco Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that Remainco shall in any event control such defense in its sole discretion and the disclosure of information to RMT Partner in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine8.10; provided further further, that the Company and Parent Remainco shall not settle or agree to provide access to settle any such materials in such a way that does Spinco Transaction Litigation without prior written consent of RMT Partner (which consent shall not jeopardize the application of the attorney-client privilegebe unreasonably withheld, attorney work product doctrine, conditioned or any other privilegedelayed).
Appears in 1 contract
Samples: RMT Transaction Agreement (Berry Global Group, Inc.)
Transaction Litigation. (a) In The Partnership Entities and Holdings will give the event that Parent Entities prompt notice of any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, Proceeding commenced or, to the knowledge Knowledge of the CompanyPartnership Entities, threatened, against any of them or their respective directors, officers, managers, partners or Affiliates relating to this Agreement or the Company or any members of the Company Board after the date hereof and prior to the Effective Time Transactions (collectively, “Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation ) and shall keep the Parent Entities reasonably informed with respect to the status thereofthereof (including by promptly furnishing to Parent and its Representatives such information relating to such Proceeding as may be reasonably requested). The Company Partnership Entities and Holdings shall give reasonably consult with the Parent the opportunity to reasonably participate in (but not control) Entities regarding the defense or settlement of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, Litigation and shall not settle compromise, settle, come to an arrangement regarding or agree to compromise, settle or come to an arrangement regarding any Company Transaction Litigation or consent to the same, without Parent’s the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the disclosure Partnership Entities and Holdings may at any time, without Parent’s consent, settle such Transaction Litigation pursuant to settlements providing solely for (i) money damages and the payment of information attorney’s fees in connection therewith shall be subject an aggregate amount not in excess of amounts equal to the provisions dollar amount of Section 6.4, including attorney-client privilege the limits of the D&O Insurance and for which the insurers under the D&O Insurance have accepted liability along with a dismissal of such Transaction Litigation that either is on a with prejudice basis or other privilege or a release of all claims executed by all Persons that are the work product doctrine; provided further that counterparties to such Transaction Litigation and/or (ii) providing additional disclosure in the Company and Parent agree to provide access to any such materials in such a way Proxy Statement that does not jeopardize disparage the application Parent Entities, the Partnership Entities, any of the attorney-client privilege, attorney work product doctrine, their respective Affiliates or any other privilegeof their respective businesses.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 1 contract
Transaction Litigation. (a) In the event that Subject to applicable Law, other than with respect to any stockholder litigation related where Parent is adverse to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall will give Parent the opportunity reasonable opportunity, at Parent’s sole cost and expense, to reasonably participate participate, subject to a customary joint defense agreement, in (but not control) the defense of any Legal Proceeding against the Company Transaction Litigationor its directors or officers relating to this Agreement or the transactions contemplated hereby, including the Merger, and no such settlement will be agreed to or offered without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed) and the Company shall consider consult in good faith Parent’s advice with Parent on litigation strategy. Subject to applicable Law, other than with respect to any litigation where the Company is adverse to Parent, Parent will give the Company the reasonable opportunity, at the Company’s sole cost and expense, to participate, subject to a customary joint defense agreement, in (but not control) the defense or settlement of any Legal Proceeding against Parent or its directors or officers relating to the Merger. Prior to the consummation of the Merger, without the prior written consent of the Company, Parent shall not settle any Legal Proceeding related to the Merger unless such settlement provides a full and unconditional release for the Company Transaction Litigation, and each officer and director of the Company party to such litigation. The Company shall not settle or agree make an offer to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that litigation against the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that director by any stockholder litigation related relating to this Agreement, the Merger or the other transactions contemplated by this Agreement is broughthereby, orincluding the Merger, without the prior written consent of Parent (such consent not to the knowledge of Parentbe unreasonably withheld, threatened, against Parent conditioned or any members of the Parent Board after the date hereof delayed) and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider consult in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure on litigation strategy. Each of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to shall, and shall cause their respective Subsidiaries to, cooperate in the defense or settlement of any such materials litigation contemplated by this Section 7.13. The parties acknowledge that this Section 7.13 in such a no way that does not jeopardize limits the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeparties’ obligations under Section 7.6(a).
Appears in 1 contract
Transaction Litigation. (a) In the event that Subject to applicable law, other than with respect to any stockholder litigation related where Parent is adverse to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall will give Parent the opportunity reasonable opportunity, at Parent’s sole cost and expense, to reasonably participate participate, subject to a customary joint defense agreement, in (but not control) the defense of any action, claim, suit or proceeding against the Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject its directors or officers relating to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this AgreementOffer, the Merger or the other transactions contemplated by this Agreement is broughtTransactions, orand no such settlement will be agreed to or offered without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed); provided, that Parent shall not be obligated to the knowledge consent to any settlement (i) which does not include full release of Parent, threatened, against Parent and its Affiliates or which imposes an injunction or other equitable relief upon Parent or any members of its Affiliates (including, after the Effective Time, the Surviving Corporation), or (ii) that would result in the payment by Parent, the Company or any Subsidiary thereof of any amount in excess of the Parent Board after retention or deductible under any applicable insurance policy of the date hereof and prior Company. Subject to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigationapplicable law, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed other than with respect to any litigation where the status thereof. Company is adverse to Parent, Parent shall will give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigationreasonable opportunity, shall consider in good faith at the Company’s advice with respect sole cost and expense, to participate, subject to a customary joint defense agreement, in (but not control) the defense or settlement of any action, claim, suit or proceeding against Parent or its directors or officers relating to the Offer, the Merger or the other Transactions. Prior to the consummation of the Merger, without the prior written consent of the Company, Parent shall not settle any action, claim, suit or proceeding related to the Offer, the Merger or the other Transactions unless such settlement provides a full and unconditional release for the Company and each officer and director of the Company party to such Parent Transaction Litigation, and litigation. The Company shall not settle or agree make an offer to settle any Parent Transaction Litigation litigation against the Company or any director by any stockholder relating to this Agreement or the Merger, without the Company’s prior written consent of Parent (which such consent not to be unreasonably withheld, conditioned or delayed); provided, that Parent shall not be unreasonably withheld); provided that the disclosure obligated to consent to any settlement (i) which does not include full release of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege Parent and its Affiliates or which imposes an injunction or other privilege equitable relief upon Parent or any of its Affiliates (including, after the work product doctrine; provided further Effective Time, the Surviving Corporation), or (ii) that would result in the payment by Parent, the Company or any Subsidiary thereof of any amount in excess of the retention or deductible under any applicable insurance policy of the Company. Each of the Company and Parent agree to provide access to shall, and shall cause their respective Subsidiaries to, cooperate in the defense or settlement of any such materials litigation contemplated by this Section 7.12. The parties acknowledge that this Section 7.12 in such a no way that does not jeopardize limits the application of the attorney-client privilege, attorney work product doctrine, or any other privilegeparties’ obligations under Section 7.5(a).
Appears in 1 contract
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, Subject to the knowledge last sentence of the Companythis Section 8.07, threatened, against the Company or any members each of the Company Board after and Parent shall promptly notify the date hereof and prior other of any stockholder or shareholder demands, litigations, arbitrations or other similar claims, actions, suits or proceedings (including derivative claims) commenced against it, its Subsidiaries and/or its or its Subsidiaries’ respective directors or officers relating to this Agreement or any of the Effective Time transactions contemplated hereby or any matters relating thereto (collectively, “Company Transaction Litigation”), the Company shall promptly notify Parent of any such Company Transaction Litigation ) and shall keep Parent reasonably the other party informed with respect regarding any Transaction Litigation (including by promptly furnishing to the status thereofother party and such other party’s Representatives such information relating to such Transaction Litigation as may reasonably be requested). The Each of the Company and Parent shall give Parent reasonably cooperate with the opportunity to reasonably participate other in (but not control) the defense or settlement of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or give the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company party the opportunity to reasonably participate in consult with it regarding the defense and settlement of any Parent such Transaction Litigation, shall consider in good faith the Companyother party’s advice with respect to such Parent Transaction Litigation and shall give the other party the opportunity to participate (at the other party’s expense) in (but not control) the defense and settlement of such Transaction Litigation. Prior to the First Effective Time, and other than with respect to any Transaction Litigation where the parties are adverse to each other or in the context of any Transaction Litigation related to or arising out of a Company Acquisition Proposal or a Parent Acquisition Proposal, neither the Company nor any of its Subsidiaries shall not settle or agree offer to settle any Parent Transaction Litigation without the Company’s prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the disclosure of information in connection therewith shall be subject . Notwithstanding anything to the provisions contrary in this Section 8.07, (a) in the event of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or conflict with any other privilege.covenant or agreement contained in Section 8.02 that expressly addresses the subject matter of this Section
Appears in 1 contract
Samples: Merger Agreement (Astrazeneca PLC)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, Prior to the knowledge of Effective Time, Parent shall give prompt written notice to the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent give prompt written notice to Parent, of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigationshareholder demands, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigationlitigations, and shall not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege arbitrations or other privilege similar claims, actions, suits or the work product doctrine; provided further that the Company and Parent agree proceedings (including derivative claims) commenced or, threatened in writing against it, its Subsidiaries and/or its or its Subsidiaries’ respective directors or officers relating to provide access to this Agreement or any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Transactions (b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigationcollectively, “Transaction Litigation”)) of which Parent or the Company, as applicable, obtains Knowledge and shall keep the other party reasonably informed regarding any Transaction Litigation. Each of Parent shall promptly notify and the Company of shall keep the other party reasonably informed on a prompt basis regarding any such Parent Transaction Litigation and shall keep promptly furnish the Company reasonably informed or Parent, as applicable, with respect to the status thereofcopies of communications received or sent or documents filed. Parent shall give the Company the opportunity to reasonably participate in the defense Each of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree shall (a) reasonably cooperate with the other in the defense or settlement of any Transaction Litigation, (b) give the other party the opportunity to provide access consult with it regarding the defense and settlement (including strategy and all decisions with respect thereto) of such Transaction Litigation (including by allowing the other party to (at the other party’s expense) offer comments or suggestions with respect to any communications, filings, pleadings, submissions and responses relating to such materials Transaction Litigation, which the receiving party shall consider and implement in good faith prior to submission), and will use reasonable best efforts to appeal any adverse Judgment entered with respect to Transaction Litigation if reasonably requested by Xxxxxx and (c) give the other party the opportunity to participate (at the other party’s expense) in the defense and settlement of such Transaction Litigation (including by giving Parent the opportunity to attend and participate in any external meetings (whether in-person or otherwise), telephone or video calls or other conferences). Notwithstanding the foregoing, (x) this Section 5.11 shall not apply or be interpreted or deemed to apply to any Transaction Litigation in which the parties are against each other or in the context of any Transaction Litigation related to or arising out of a Takeover Proposal and (y) no provision of this Section 5.11 shall require or be interpreted or deemed to require either Parent or the Company, as applicable, to waive any applicable privileges, protections or immunities as to them (provided that in the event of any information being withheld as a result thereof, the Company or Parent, as applicable, shall, to the extent that it would not jeopardize any such privilege, protection or immunity, inform the other party of the general nature of any information being withheld and use its reasonable best efforts to communicate, to the extent feasible, the applicable information in a way that does would not jeopardize risk waiver of any applicable privileges, protections or immunities). Notwithstanding anything to the application contrary in this Section 5.11, in the event of the attorney-client privilege, attorney work product doctrine, or any conflict with any other privilegecovenant or agreement contained in Section 5.03 that expressly addresses the subject matter of this Section 5.11, Section 5.03 shall govern and control.
Appears in 1 contract
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior Prior to the Effective Time (“Company Transaction Litigation”)Time, the Company shall promptly notify Parent, and each of Parent and Merger Sub shall promptly notify the Company, of all (i) notices and other communications received by it from any Governmental Entity in connection with the Merger or any other transaction contemplated by this Agreement or from any Person alleging that the consent of such Person is required in connection with the transactions contemplated by this Agreement, if the subject matter of such communication or the failure of such party to obtain such consent could be material to the Company, its Subsidiaries or Parent and (ii) civil, criminal or administrative actions, suits, claims, hearings, arbitrations, investigations or other proceedings commenced or, to such Person’s knowledge, threatened against the Company, any of its Subsidiaries, the Company Board or any committee thereof, or against Parent or Merger Sub, in each case in connection with, arising from or otherwise relating to the Merger or any other transaction contemplated by this Agreement (“Transaction Litigation”) (including by providing copies of all pleadings with respect thereto) and thereafter keep such other Party reasonably informed of any such Company Transaction Litigation and shall keep Parent reasonably informed material developments with respect to the status thereof. The Company shall (a) give Parent the opportunity to reasonably participate in (but not control) the defense defense, settlement or prosecution of any Company Transaction Litigation, shall consider in good faith Parent’s advice Litigation and (b) consult with Parent with respect to such Company the defense, settlement and prosecution of any Transaction Litigation, and . The Company shall not settle offer to make or agree make any payment with respect to settle any Company Transaction Litigation or enter into any settlement or similar agreement relating to any Transaction Litigation without Parent’s the prior written consent (of Parent, which consent shall not be unreasonably withheld); provided , conditioned or delayed (it being understood that the disclosure of information it would be unreasonable for Parent to withhold or condition consent to any payment, settlement or other agreement in connection therewith shall be subject to with any Transaction Litigation that only requires (x) the provisions issuance of Section 6.4, including attorney-client privilege or other privilege or additional disclosure and/or (y) the work product doctrine; provided further payment of money in Table of Contents connection with such settlement in an amount that does not exceed any insurance proceeds that the Company and Parent agree reasonably expects to provide access to any such materials receive (after consultation with the applicable insurer, in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), which counsel for Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect be permitted to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice participate) with respect to such Parent Transaction Litigationclaim and any deductible in respect thereof). Notwithstanding anything to the contrary in the foregoing, and shall not settle or agree any litigation relating to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith Dissenting Stockholders shall be subject to the provisions of governed by Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege4.2(f).
Appears in 1 contract
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior Prior to the Effective Time (“Company Transaction Litigation”)Time, the Company shall promptly notify Parent of all (i) notices and other communications received by the Company or its Subsidiaries from any Governmental Entity in connection with the Merger or any other transaction contemplated by this Agreement or from any Person alleging that the consent of such Person is required in connection with the transactions contemplated by this Agreement, if the subject matter of such communication or the failure of such party to obtain such consent could be material to the Company, its Subsidiaries or Parent and (ii) civil, criminal or administrative actions, suits, claims, hearings, arbitrations, investigations or other proceedings commenced or threatened against the Company or any of its Subsidiaries or the Company Board, or any committee thereof, in each case in connection with, arising from or otherwise relating to the Merger or any other transaction contemplated by this Agreement (“Transaction Litigation Litigation”) (including by providing copies of all pleadings with respect thereto) and shall thereafter keep Parent reasonably informed with respect to the status thereof. The Company shall (a) give Parent the opportunity to reasonably participate in (but not control) the defense defense, settlement or prosecution of any Company Transaction Litigation and (b) consult with Parent with respect to the defense, settlement and prosecution of any Transaction Litigation. For purposes of this Section 6.15, “participate” means that Parent will be kept reasonably apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith Parent’s advice with respect to faith, but Parent will not be afforded any decision making power or other authority over such Company Transaction Litigation; provided, and that no settlement shall be offered or entered into or payment made without the consent of Parent (not settle or agree to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheldwithheld or delayed); provided that . Notwithstanding anything to the disclosure of information contrary in connection therewith the foregoing, any litigation relating to Dissenting Stockholders shall be subject to the provisions of governed by Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege4.2(f).
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 1 contract
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement Transactions is brought, or, to the knowledge Knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior to the Effective Time (“Company Transaction Litigation”), the Company shall promptly notify Parent HR of any such Company Transaction Litigation and shall keep Parent HR reasonably informed with respect to the status thereof. The Company shall give Parent HR the opportunity to reasonably participate in (but not control) the defense of any Company Transaction Litigation, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigation, and shall not settle or agree to settle any Company Transaction Litigation without ParentHR’s prior written consent (which consent shall not be unreasonably withheld); provided provided, however, that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.46.05, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent HR agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement Transactions is brought, or, to the knowledge Knowledge of ParentHR, threatened, against Parent HR or any members of the Parent HR Board after the date hereof and prior to the Effective Time (“Parent HR Transaction Litigation” and and, together with Company Transaction Litigation, “Transaction Litigation”), Parent HR shall promptly notify the Company of any such Parent HR Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent HR shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent HR Transaction Litigation, and shall not settle or agree to settle any Parent HR Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.46.05, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent HR agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 1 contract
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior Prior to the Effective Time (“Company Transaction Litigation”)Time, the Company shall promptly notify Parent Newco of all Legal Proceedings commenced or threatened against the Company or any such Company of its Subsidiaries or Affiliates, in each case in connection with, arising from or otherwise relating to the Merger or any other transaction contemplated by this Agreement (“Transaction Litigation Litigation”) (including by providing copies of all pleadings with respect thereto) and shall thereafter keep Parent Newco reasonably informed with respect to the status thereof. For the avoidance of doubt, Transaction Litigation shall in no event include or be deemed to encompass any Legal Proceedings related to or in connection with any disputes between the Company, on the one hand, and Newco, Merger Sub, Guarantor, the Financing Sources or their respective Affiliates, on the other hand, relating to this Agreement. The Company shall (a) give Parent Newco the opportunity to reasonably participate in (but not control) the defense defense, settlement or prosecution of any Company Transaction Litigation and (b) consult with Newco with respect to the defense, settlement and prosecution of any Transaction Litigation. Further, shall consider the Company may not compromise, settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding, any Transaction Litigation unless Newco has consented thereto in good faith Parent’s advice writing (which consent will not be unreasonably withheld, conditioned or delayed). For purposes of this Section 7.9, “participate” means that Newco will be kept apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise affected), and Newco may offer comments or suggestions with respect to such Company Transaction Litigation, and shall but will not settle be afforded any decision-making power or agree to settle any Company other authority over such Transaction Litigation without Parent’s prior written except for the settlement or compromise consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject set forth above. Notwithstanding anything to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate contrary in the defense foregoing, nothing in this Section 7.9 shall limit the rights of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheldNewco under Section 1.4(b)(iii); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
Appears in 1 contract
Samples: Merger Agreement (Imperva Inc)
Transaction Litigation. (a) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of the Company Board after the date hereof and prior Prior to the Effective Time (“Company Transaction Litigation”)Time, the Company shall promptly notify Parent, and each of Parent and Merger Sub shall promptly notify the Company, of all (i) notices and other communications received by it from any Governmental Entity in connection with the Merger or any other transaction contemplated by this Agreement or from any Person alleging that the consent of such Person is required in connection with the transactions contemplated by this Agreement, if the subject matter of such communication or the failure of such party to obtain such consent could be material to the Company, its Subsidiaries or Parent and (ii) civil, criminal or administrative actions, suits, claims, hearings, arbitrations, investigations or other proceedings commenced or, to such Person's knowledge, threatened against the Company, any of its Subsidiaries, the Company Board or any committee thereof, or against Parent or Merger Sub, in each case in connection with, arising from or otherwise relating to the Merger or any other transaction contemplated by this Agreement ("Transaction Litigation") (including by providing copies of all pleadings with respect thereto) and thereafter keep such other Party reasonably informed of any such Company Transaction Litigation and shall keep Parent reasonably informed material developments with respect to the status thereof. The Company shall (a) give Parent the opportunity to reasonably participate in (but not control) the defense defense, settlement or prosecution of any Company Transaction Litigation, shall consider in good faith Parent’s advice Litigation and (b) consult with Parent with respect to such Company the defense, settlement and prosecution of any Transaction Litigation, and . The Company shall not settle offer to make or agree make any payment with respect to settle any Company Transaction Litigation or enter into any settlement or similar agreement relating to any Transaction Litigation without Parent’s the prior written consent (of Parent, which consent shall not be unreasonably withheld); provided , conditioned or delayed (it being understood that the disclosure of information it would be unreasonable for Parent to withhold or condition consent to any payment, settlement or other agreement in connection therewith shall be subject to with any Transaction Litigation that only requires (x) the provisions issuance of Section 6.4, including attorney-client privilege or other privilege or additional disclosure and/or (y) the work product doctrine; provided further payment of money in connection with such settlement in an amount that does not exceed any insurance proceeds that the Company and Parent agree reasonably expects to provide access to any such materials receive (after consultation with the applicable insurer, in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that any stockholder litigation related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), which counsel for Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect be permitted to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice participate) with respect to such Parent Transaction Litigationclaim and any deductible in respect thereof). Notwithstanding anything to the contrary in the foregoing, and shall not settle or agree any litigation relating to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith Dissenting Stockholders shall be subject to the provisions of governed by Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege4.2(f).
Appears in 1 contract
Transaction Litigation. (a) In the event that Subject to applicable Law, other than with respect to any stockholder litigation related where Buyer is adverse to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of the Company, threatened, against the Company or any members of will give Buyer the Company Board after the date hereof reasonable opportunity, at Buyer’s sole cost and prior expense, to the Effective Time (“Company Transaction Litigation”)participate, the Company shall promptly notify Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect subject to the status thereof. The Company shall give Parent the opportunity to reasonably participate a customary joint defense agreement, in (but not control) the defense of any Action against the Company Transaction Litigationor its directors, officers, employees or agents relating to this Agreement or the transactions contemplated hereby, including the Merger, and no such settlement will be agreed to or offered without the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed) and the Company shall consider consult in good faith Parent’s advice with Buyer on litigation strategy. Subject to applicable Law, other than with respect to any litigation where the Company is adverse to Buyer, Buyer will give the Company the reasonable opportunity, at the Company’s sole cost and expense, to participate, subject to a customary joint defense agreement, in (but not control) the defense or settlement of any Action against Buyer or its directors, officers, employees or agents relating to the Merger. Prior to the consummation of the Merger, without the prior written consent of the Company, Buyer shall not settle any Action related to the Merger unless such settlement provides a full and unconditional release for the Company Transaction Litigation, and each officer and director of the Company party to such litigation. The Company shall not settle or agree make an offer to settle any Company Transaction Litigation without Parent’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that litigation against the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege.
(b) In the event that director by any stockholder litigation related relating to this Agreement, the Merger transactions contemplated hereby, including the Merger, without the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed) and the other transactions Company shall consult in good faith with Buyer on litigation strategy. Each of the Company and Buyer shall, and shall cause their respective Subsidiaries to, cooperate in the defense or settlement of any litigation contemplated by this Agreement is brought, or, to the knowledge of Parent, threatened, against Parent or any members of the Parent Board after the date hereof and prior to the Effective Time (“Parent Transaction Litigation” and together with Company Transaction Litigation, “Transaction Litigation”), Parent shall promptly notify the Company of any such Parent Transaction Litigation and shall keep the Company reasonably informed with respect to the status thereof. Parent shall give the Company the opportunity to reasonably participate in the defense of any Parent Transaction Litigation, shall consider in good faith the Company’s advice with respect to such Parent Transaction Litigation, and shall not settle or agree to settle any Parent Transaction Litigation without the Company’s prior written consent (which consent shall not be unreasonably withheld); provided that the disclosure of information in connection therewith shall be subject to the provisions of Section 6.4, including attorney-client privilege or other privilege or the work product doctrine; provided further that the Company and Parent agree to provide access to any such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilege5.14.
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