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
Sources: 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
Sources: Agreement and Plan of Merger (PMC Sierra Inc), Agreement and Plan of Merger (Skyworks Solutions, Inc.), Merger Agreement (PMC Sierra 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
Sources: 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 Parent and the event that Company shall promptly advise each other orally and in writing of any stockholder litigation related claim, action, suit, proceeding, arbitration, mediation, or investigation commenced or, to the Knowledge of the Company on the one hand and to the knowledge of Parent on the other hand, threatened prior to the Effective Time against Parent or the Company, as the case may be, or any of their respective directors, relating to this Agreement, the Merger or any of the other transactions contemplated by this Agreement is broughtAgreement, 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 each other reasonably informed with respect to the status thereofregarding any such occurrence. The Company shall give Parent the opportunity to reasonably participate in (but not control) the defense defense, negotiation, or settlement of any litigation against the Company Transaction Litigationand/or its directors and/or executive officers relating to this Agreement, shall consider in good faith Parent’s advice with respect to such Company Transaction Litigationthe Merger and the other transactions contemplated by this Agreement, and no such settlement shall not settle or agree be agreed to settle any Company Transaction Litigation without Parent’s the prior written consent (of Parent, 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 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 thereofdelayed. Parent shall give the Company the opportunity to reasonably participate in the defense defense, negotiation, or settlement of any stockholder litigation against Parent Transaction Litigationand/or its directors and/or executive officers relating to this Agreement, shall consider in good faith the Company’s advice with respect to such Parent Transaction LitigationMerger and the other transactions contemplated by this Agreement, and no such settlement shall not settle or agree be agreed to settle any Parent Transaction Litigation without the Company’s prior written consent (of the Company, which consent shall not be unreasonably withheld); provided that , conditioned or delayed. Without limiting in any way the disclosure parties’ obligations under this Section 7.10, 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 Parent and the Company shall cooperate, shall cause their respective Subsidiaries to cooperate, and Parent agree shall use its reasonable best efforts to provide access cause their respective directors, officers, employees and Representatives to any cooperate, in the defense of such materials in such a way that does not jeopardize the application of the attorney-client privilege, attorney work product doctrine, or any other privilegestockholder litigation.
Appears in 2 contracts
Sources: Merger Agreement (Gen Probe Inc), Merger Agreement (Hologic 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
Sources: 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
Sources: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra 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 or settlement of any Action against the Company Transaction Litigationor its directors or officers relating to the Merger and the transactions contemplated hereby, shall consider in good faith Parent’s advice and no such settlement will be agreed to without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). 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 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 other party hereto, a party hereto 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 Action related to the provisions Merger and the transactions contemplated hereby unless such settlement provides a full and unconditional release for the other party hereto and each officer and director of Section 6.4, including attorney-client privilege or the other privilege or the work product doctrine; provided further that 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 6.16. The parties acknowledge that this Section 6.16 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 2 contracts
Sources: Merger Agreement (NXP Semiconductors N.V.), Merger Agreement (Freescale Semiconductor, Ltd.)
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
Sources: Merger Agreement (PARETEUM Corp), Merger Agreement (Ipass 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
Sources: 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
Sources: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, 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 (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
Sources: Merger Agreement (Splunk Inc), Merger Agreement (Cisco Systems, Inc.)
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
Sources: Merger Agreement (Vail Resorts Inc), Merger Agreement (Peak 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
Sources: Merger Agreement (Wheeler Real Estate Investment Trust, Inc.), Merger Agreement (Cedar Realty Trust, Inc.)
Transaction Litigation. (a) In The Company shall promptly notify Parent, and Parent shall promptly notify the event that Company, of any stockholder litigation Legal Proceeding related to this Agreement, the Merger or the other transactions contemplated by this Agreement is brought, or, to the knowledge of Transactions threatened or brought against the Company, threatened, against the Company or any members its directors and/or officers by security holders of the Company Board after the date hereof and prior to the Effective Time (a “Company Transaction Litigation”), on the one hand, or Parent, its directors and/or officers by security holders of Parent, on the other hand (a “Parent Transaction Litigation” and each such action, a “Transaction Litigation”); provided, that in no event shall Company Transaction Litigation, Parent Transaction Litigation or Transaction Litigation include any Legal Proceedings in which the Company and Parent are adverse parties. The Company shall promptly notify provide Parent a reasonable opportunity to participate in but not control, the defense of any such a Company Transaction Litigation and Parent shall keep provide the Company a reasonable opportunity to participate in but not control, the defense of a Parent reasonably informed with respect to the status thereof. The Company shall give Parent Transaction Litigation, including, in each case, the opportunity to reasonably review material communications and participate in (but material meetings with opposing counsel or any Governmental Entity in connection with a Transaction Litigation. Except to the extent required by applicable Law, the Company, on the one hand, and Parent, on the other hand, shall not control) the defense of enter into any Company settlement agreement, agree to any undertakings or approve or otherwise agree to any waiver that may be sought in connection with such 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 the prior written consent of Parent or the Company, as applicable (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 2 contracts
Sources: Merger Agreement (Avalonbay Communities Inc), Merger Agreement (Erp Operating LTD Partnership)
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 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
Sources: Merger Agreement (Schulman a 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, 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 termination of this Agreement pursuant to Section 8.1, the Company shall promptly notify Parent of all Legal Proceedings commenced or, to the Knowledge of the Company, threatened against the Company or any such of the Company Subsidiaries or any of their respective directors or officers, in each case in connection with, arising from or otherwise relating to the Offer, the Merger or any of the other Transactions (“Transaction Litigation Litigation”) (including by providing copies of all pleadings and shall other material documents with respect thereto) and thereafter keep Parent reasonably informed with respect to the status thereof. The Company shall (a) give Parent the reasonable 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; (b) consult with Parent with respect to the defense, shall settlement and prosecution of any Transaction Litigation and (c) give due consideration, and consider in good faith faith, Parent’s advice view with respect to such Company any Transaction Litigation. Further, and shall the Company may not compromise, settle or come to an arrangement regarding, or propose 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 . Rule 16b-3. The Company shall take all such steps as may be required to cause the disclosure Transactions, and any other dispositions of information in connection therewith shall equity securities (including derivative securities) of the Company resulting from the Transactions by each individual who is or will be subject to the provisions reporting requirements 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 16(a) 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 Exchange Act with respect to the status thereof. Parent shall give Company, to be exempt under Rule 16b-3 promulgated under 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 privilegeExchange Act.
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 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 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 Prior to the event that earlier of the Closing and the valid termination of this Agreement, Parent shall control the defense of any stockholder litigation related brought by stockholders of Parent against Parent and/or its officers and/or directors relating to the Sale Process, this Agreement, the Merger Agreement or the other transactions contemplated by this Agreement is broughthereby or thereby (such litigation, 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 ; provided that Parent of any such Company Transaction Litigation and shall keep Parent reasonably informed with respect to the status thereof. The Company shall give Parent Purchaser and New CommerceOne the opportunity to reasonably participate in (but not control) consult with Parent regarding the defense or settlement of any Transaction Litigation. Purchaser, New CommerceOne and Parent shall promptly provide the other parties with copies of all proceedings and correspondence relating to any Transaction Litigation. Following the Closing, Purchaser shall control the defense of any Company Transaction Litigation, ; provided that Purchaser shall consider in good faith Parent’s advice give New CommerceOne the opportunity to consult with respect to such Company Purchaser regarding the defense or settlement of any Transaction Litigation. None of Parent, and New CommerceOne or Purchaser shall not settle or agree to settle any Company Transaction Litigation without Parent’s the prior written consent of the other parties (which consent shall not be unreasonably withheld); provided that the disclosure of information , conditioned or delayed, if, in connection therewith shall be subject with such settlement, (x) no equitable or injunctive relief is granted as part of such settlement and (y) 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 extent such materials parties are named in such a way that does not jeopardize Transaction Litigation, such settlement includes an express, complete and unconditional release of New CommerceOne, Parent or Purchaser, as applicable, and its directors, officers, employees and agents with respect to all claims asserted in such Transaction Litigation to the application extent applicable). Each of New CommerceOne, Parent and Purchaser shall, and shall cause their respective Subsidiaries and their and their respective Subsidiaries’ Representatives to, cooperate in the attorney-client privilege, attorney work product doctrine, defense or settlement of 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 privilege6.18.
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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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