Common use of Case Allocation Clause in Contracts

Case Allocation. (a) As of the Effective Time, Newco shall, and, as applicable, shall cause the other members of the Newco Group to, (i) diligently conduct, at its sole cost and expense, the defense of the Newco Legal Actions, including the Newco Legal Actions listed on Schedule 5.01(a) and any applicable future Newco Legal Actions; and (ii) agree not to file any cross claim or institute separate legal proceedings against the Company in relation to the Newco Legal Actions. For the avoidance of doubt, nothing in this Section 5.01(a) shall limit the rights of any member of the Part D Group under this Agreement or any other Split-Off Agreement. (b) As of the Effective Time, the Company shall, and, as applicable, shall cause the other members of the Part D Group to, (i) diligently conduct, at its sole cost and expense, the defense of the Part D Legal Actions, including the Part D Legal Actions listed on Schedule 5.01(b) and any applicable future Part D Legal Actions; and (ii) agree not to file any cross claim or institute separate legal proceedings against Newco in relation to the Part D Legal Actions. For the avoidance of doubt, nothing in this Section 5.01(b) shall limit the rights of any member of the Newco Group under this Agreement or any other Split-Off Agreement. (c) As of the Effective Time, each Party shall, and, as applicable, shall cause the other members of its Group to, (i) diligently conduct, on a joint basis, the defense of the Joint Legal Actions; and (ii) notify the other Party of material litigation developments related to the Joint Legal Actions; provided, however, that if it becomes clear that a Joint Legal Action does not relate primarily to the Medicare Part D Business then from and after such time such Joint Legal Action shall instead be deemed to be a Newco Legal Action subject to clause (a) above; provided, further, that if it becomes clear that a Joint Legal Action relates primarily to the Medicare Part D Business then from and after such time such Joint Legal Action shall instead be deemed to be a Part D Legal Action subject to clause (b) above. The Company and Newco shall regularly meet to review and discuss the progress of the Joint Legal Actions and the classification thereof. (d) Until such time as the respective Liabilities of the members of the Part D Group and Newco Group are determined in connection with any Joint Legal Action, the Company and Newco shall each pay 50% of the cost and expenses associated with the defense of such Joint Legal Action. Each Party shall have the right to employ separate counsel to represent it and members of its Group if the such shall have reasonably concluded that there is a legal defense available to members of its Group that is different from or in addition to those available to the other Group or that representation of both such Party (or any member of such Party’s Group) and the other Party (or any member of the other Party’s Group) by the same counsel would be inappropriate due to an actual conflict of interest between them, in which case fees and expenses of such counsel shall be included in the amounts allocated by the next sentence of this Section 5.01(d). Upon the determination of Liability of the members of the Part D Group and Newco Group in connection with any Joint Legal Action, Newco shall indemnify and hold harmless the Part D Indemnitees against the portion of such Liabilities relating primarily to the Newco Business, and the Company shall indemnify and hold harmless the Newco Indemnitees against the portion of such Liabilities relating primarily to the Medicare Part D Business, including, in each case, the costs and expenses associated with the defense of such Joint Legal Action since the beginning of such Joint Legal Action, which shall be allocated between the Company and Newco in proportion to the Liability with respect to such Joint Legal Action of members of the Part D Group, on the one hand, and members of the Newco Group, on the other hand. Indemnification pursuant to this Section 5.01(d) shall be in accordance with the indemnification provisions of Article VI.