Retained Litigation. (a) From and after the Closing, Seller shall retain full control and responsibility for the defense, negotiation or settlement of, and any other action or decision relating to the Actions pending against Seller, Subsidiaries of Seller and/or ICX in relation to the Business that are listed in Section 5.15(a) of the Seller Disclosure Schedule (collectively, the “Retained Litigation”). The Retained Litigation includes the “Picturemail Retained Litigation”, the “MDG Retained Litigation” and the “Other Retained Litigation”, in each case as specified on Section 5.15(a) of such Schedule, and, immediately prior to the Closing, Seller shall deliver to Purchaser a supplement to Section 5.15(a) of the Seller Disclosure Schedule adding any Actions commenced after the date hereof that included claims substantially similar to the claims in such Actions that have been commenced prior to the date hereof (and “Retained Litigation” shall be deemed to include any such additional Actions). Notwithstanding the foregoing (or other provision of this Agreement), Seller shall not settle any Retained Litigation without Purchaser’s prior written consent (which consent shall not be unreasonably withheld or delayed) unless the relief provided by such settlement would not (i) impose any material obligations or restrictions on the Business or (ii), in the case the MDG Retained Litigation and Other Retained Litigation, impose any Loss on Purchaser or the Business after the Closing Date that is not indemnifiable by Seller under Section 10.01(a) or (iii), in the case of the Picturemail Retained Litigation, impose any Loss on Purchaser or the Business after the Closing Date in excess of the amount set forth in Section 10.01(b)(v) that is not indemnifiable by Seller under Section 10.01(a). For the purposes of determining the indemnification obligations of Seller and Purchaser under Section 10.01(a)(vi) and Section 10.01(b)(v), respectively, Seller shall make a reasonable allocation between the pre-Closing and post-Closing periods of any Loss arising from any settlement of the Picturemail Retained Litigation. Purchaser may at any time elect to retain separate counsel of its choice to represent Purchaser and/or any of its Subsidiaries, including ICX, in connection with any Retained Litigation, and Purchaser shall pay the fees, charges and disbursements of such counsel; provided that (i) Seller shall have the right to approve the identity of such counsel, such approval not to be unreasonably wi...
Retained Litigation. It is understood and agreed that (i) effective at Closing, the Company and its Subsidiaries shall assign to Seller or an Affiliate designated by Seller all of their rights with respect to the Retained Litigation and (ii) at and after the Closing, Buyer shall cause the Company and its Subsidiaries to execute such additional written assignments or other agreements as Seller shall reasonably request to implement or evidence the assignment of the Retained Litigation. Without limiting the generality of the foregoing, it is understood and agreed that Seller (i) at its expense, shall control the pursuit and defense of any and all Retained Litigation and shall be entitled to pursue and control the prosecution and defense of any such Retained Litigation and (ii) shall be entitled to all proceeds, awards, judgments and settlements in respect of, and shall be responsible for all Damages arising out of, any Retained Litigation.
Retained Litigation. (a) The Buyer shall, and shall procure that, following the Closing, the Companies shall take such actions as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest (including making counterclaims or other claims against third parties) all or any proceedings which comprise the Retained Litigation, subject to the Buyer being paid all reasonable costs and expenses incurred by it and the Companies in complying with the Seller’s request; and provided, that the Buyer and the Companies shall not be required to agree to incur any liabilities, obligations or restrictions which restrict or impair the operation of the Business. The Buyer shall ensure that no admissions in relation to Retained Litigation shall be made by or on behalf of any Company, and no part of the Retained Litigation shall be compromised, disposed of or settled without the prior written consent of the Seller.
Retained Litigation. (a) Notwithstanding anything to the contrary in this Agreement, the Company shall, at its own expense, or at the expense of its insurers or indemnitors, and with counsel selected by the Company or its insurers in their sole discretion (“Company Counsel”), have the right to continue to direct, prosecute and defend the Retained Litigation in its sole discretion. After the Closing, the Acquiror shall, and shall cause its Affiliates and its Affiliates’ Representatives to, in each case at the Company’s sole cost and expense, reasonably cooperate with the Company in connection with the prosecution and defense by the Company of the Retained Litigation, including by (i) making Business personnel reasonably available for interviews, consultations, preparation, meetings, depositions, trial testimonies or pre-testimony preparation, physically (in each case only to the extent in or around Tulsa, Oklahoma, except in the event of an actual trial located elsewhere) or telephonically, in each case, as the Company or Company Counsel shall request in writing with as much advance notice as practicable given the applicable circumstances (provided, that, to the extent such Business personnel are made available to the Company pursuant to this clause (i), they shall be deemed to be consultants of the Company in connection with any such assistance so provided), and (ii) providing the Company and Company Counsel access to, such information, documents and records as shall be necessary for the prosecution and defense of the Retained Litigation (in each case only to the extent the Company or Company Counsel do not have access to such information, documents and records following the Closing), and the Acquiror shall retain such information, documents and records upon the Company’s or Company Counsel’s written request. The Company shall use its reasonable best efforts to schedule any such activity in a manner that is the least inconvenient for the Acquiror and its personnel and nothing in this Agreement shall require the Acquiror or any of its Affiliates (including the Business) to file any claims or other court papers or actively initiate any claim for Losses relating to the Retained Litigation against any Person. In the event of any deposition, testimony or other similar proceedings involving the Acquiror or its Affiliates or their respective Representatives, the Acquiror shall be permitted to participate therein with one counsel of its own at the Company’s sole cost and expense.
Retained Litigation. Notwithstanding anything contained in this Agreement to the contrary, the parties hereto agree that Seller, at its cost 112 and expense, shall retain, and shall have the sole right to control, all claims and causes of action which have been asserted or may be asserted in the future by or on behalf of the Acquired Companies in the following captioned lawsuits and/or any other lawsuits which may be filed in the future with respect to the subject matter of such captioned lawsuits (hereinafter collectively referred to as the "Retained Litigation"):
Retained Litigation. Except for the "Excluded Matter" (hereinafter defined), Seller shall be fully and solely responsible for all of the legal, administrative and/or arbitration proceedings described in Sections 4.10 and/or 4.18 of the Disclosure Schedule (such matters, the "Retained Litigation"). With respect to the Retained Litigation, Seller shall be responsible for providing a defense against all such matters (as if Seller were the party in interest therein) and Seller shall bear all of the costs and expenses of defending against the claims presented in the Retained Litigation and the full amount of any liabilities, losses, damages, judgments or settlements in connection therewith (including, without limitation, court costs and attorney fees), provided, however, that at no expense to Seller, Buyer and ELPC agree to cooperate fully with Seller and its Affiliates with respect to all aspects of the defense of the Retained Litigation. Without the consent of Buyer, Seller will not consent to, enter into, or acquiesce in any settlement, finding, confession of judgment, decree, or similar disposition of any of the Retained Litigation against ELPC, ELPLP, ELPOLP, ENGL and/or ETS or any of their operations which includes any terms other than payment of damages in cash, which payment will be borne entirely by Seller, or which makes any finding which might interfere with or have an adverse effect on the future business or operations of ELPC, ELPLP, ELPOLP, ENGL and/or ETS. As used herein, the "Excluded Matter" (responsibility for which shall be retained by ELPC) is the matter identified in Sections 4.10 and 4.18 of the Disclosure Schedule as State of Illinois ex rel. Ryan, et al. v. Enron Liquids Pxxxxine Company.
Retained Litigation. Notwithstanding any other provision set forth herein, Sellers shall continue to be responsible for all costs and expenses for that litigation set forth in Schedule 8.8. Sellers shall have the authority to make all decisions concerning the litigation, including, without limitation, decisions relating to the prosecution, amendment, supplementation or dismissal of claims, counterclaims and third party claims, the employment or continued employment of counsel, consultants and experts, the substitution of a bond for mechanic’s lien, any settlement offers and settlement; provided, however, the Sellers may not agree to any settlement that would impose any obligation on the Surviving Corporation or any of its Affiliates (other than a payment obligation that will be paid immediately in full by the Sellers) without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Furthermore, Sellers will be entitled to receive all proceeds, if any, recovered from such litigation by settlement, judgment enforcement, ancillary proceedings or otherwise recovered in such litigation or any other litigation related to it or arising out of it. To the extent reasonably necessary, and at Sellers’ sole cost and expense, Buyer will use its good faith efforts to cooperate with Sellers’ requests including but not limited to, making available Buyer’s personnel (i.e., Cxxxx Xxxxxxx, Bxxxx Xxxxx or any other former Emerald employee working for Buyer) for deposition and trial testimony and for other proceedings in such litigation and making available to Sellers and Sellers’ counsel the Green Theory project files, records, documents and electronically stored information in Buyer’s control, custody or possession which are reasonably required for the prosecution and defense of such litigation.
Retained Litigation. 32 SEC................................................33 Seller..............................................1
Retained Litigation. (a) The Parties acknowledge and agree that Seller shall retain all rights to pursue the prosecution and defense of the Retained Litigation. Buyer hereby grants and assigns to Seller any and all rights, title and interest in and to any and all claims, actions and causes of action of whatever kind or nature, that the Group Companies have, may have or did have, in connection with and arising out of the Retained Litigation.
Retained Litigation. For so long as the Seller or any Selling Subsidiary is contesting or defending against any proceeding in connection with any Retained Litigation, Seller or such Selling Subsidiary (i) shall use commercially reasonable efforts to actively and diligently contest or defend such Retained Litigation; (ii) within a reasonable period of time following a request by Buyer shall provide Buyer with a summary of all material developments related to such Retained Litigation; (iii) shall allow Buyer to participate in the defense of such Retained Litigation at the sole cost and expense of Buyer; and (iv) shall not settle any Retained Litigation without Buyer’s consent unless such settlement would be permitted under Section 8.3. ARTICLE VI [Reserved.]
