Common use of Certain Litigation Clause in Contracts

Certain Litigation. Each of the parties hereto shall promptly advise the other parties orally and in writing of any litigation commenced by any stockholder of the Company after the date hereof against such party or any of its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support Agreement and/or the transactions provided for herein and therein. In addition, subject to a customary joint defense agreement, the Company shall keep Newco reasonably informed regarding any litigation commenced by any stockholder of the Company after the date hereof against the Company or any of its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support Agreement or the transactions provided for herein and therein. The Company shall give Newco the opportunity to consult with the Company regarding (but not to control) the defense or settlement of any such stockholder litigation, shall give due consideration to Newco’s advice with respect to such stockholder litigation and shall not settle any such stockholder litigation without the prior written consent of Newco unless such settlement requires only an immaterial payment by the Company, contains no restrictions on the Company’s operations, and contains no admission of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco has been advised and kept informed in accordance with the terms of this Section 6.9) would not have a Company Material Adverse Effect (a “Proposed Settlement”), (ii) Newco does not consent to such Proposed Settlement and (iii) the ultimate resolution of such litigation is less favorable to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, or be considered in determining the existence or occurrence of, a Company Material Adverse Effect. In addition, the Company shall not cooperate with any third party that may hereafter seek to restrain or prohibit or otherwise oppose the Merger and shall cooperate with Newco to resist any such effort to restrain or prohibit or otherwise oppose the Merger.

Certain Litigation. Each of In the parties hereto shall promptly advise event that any litigation related to this Agreement and/or the other parties orally and Contemplated Transactions is brought by, or threatened in writing of by, any litigation commenced by any stockholder of Person against the Company after the date hereof against such party or any of and/or its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support Agreement and/or the transactions provided for herein and therein. In addition, subject to a customary joint defense agreementofficers, the Company shall promptly notify Parent of such litigation and shall keep Newco Parent reasonably informed regarding any litigation commenced by any stockholder of with respect to the status thereof. Notwithstanding anything to the contrary herein (but subject to the following sentence), the Company after shall have the date hereof against right to control the Company or defense of any of its directors or Affiliates relating to this Agreement, such litigation; provided that the Merger, the Voting and Support Agreement or the transactions provided for herein and therein. The Company shall give Newco the Parent the opportunity to consult with participate, at the Company regarding (but not to control) Parent’s expense, in the defense or settlement of any such stockholder litigation, litigation and the Company shall give due consideration to Newcothe Parent’s advice with respect to such stockholder litigation and litigation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not settle settle, offer to settle, or enter into any negotiations or agreements with respect to the settlement or potential settlement of any such stockholder litigation without the prior written consent of Newco unless such Parent, which consent shall not be unreasonably conditioned, withheld or delayed (provided that Parent shall not withhold its consent if the settlement requires only involves (a) solely the payment of an immaterial payment aggregate amount not to exceed $100,000 and supplemental disclosure (provided, further that the 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), (b) no admission of wrongdoing or liability, (c) no injunctive or similar relief, (d) a complete and unconditional release from the Companynamed plaintiff(s) of all defendants in respect of all disclosure claims then pending relating to this Agreement and the Contemplated Transactions, contains (e) the withdrawal or dismissal of all claims and actions then pending relating to this Agreement and the Contemplated Transactions and (f) no restrictions on the Company’s operations, ability to conduct its business following the Closing). Each of the Parent and contains no admission of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco has been advised and kept informed in accordance with the terms of this Section 6.9) would not have a Company Material Adverse Effect (a “Proposed Settlement”), (ii) Newco does not consent to such Proposed Settlement and (iii) the ultimate resolution of such litigation is less favorable to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, or be considered in determining the existence or occurrence of, a Company Material Adverse Effect. In addition, the Company shall not cooperate with any third party that may hereafter seek to restrain notify the other promptly of the commencement, or prohibit or otherwise oppose the Merger and shall cooperate with Newco to resist commencement threatened in writing, of any such effort to restrain or prohibit or otherwise oppose the Mergerlitigation of which it has received notice.

Certain Litigation. Each of the parties hereto The Company shall promptly advise the other parties Acquiror orally and in writing of any litigation commenced by any stockholder of the Company after the date hereof against such party or any of its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support Agreement and/or the transactions provided for herein and therein. In addition, subject to a customary joint defense agreement, the Company shall keep Newco reasonably informed regarding any litigation commenced by any stockholder of the Company after the date hereof against the Company, the Operating Partnership, Montgomery or any trustees, managers or directors of any of them by axx xxxxxxxlder of the Company or any holder of its directors OP Common Units or Affiliates any holder of Montgomery LP Units, as the case may be (collectively, the "Shareholdxx Xxxxxxxxxx") relating to this Agreement, any of the Merger, Mergers and/or the Voting other transactions contemplated hereby and Support Agreement or the transactions provided for herein and thereinshall keep Acquiror fully informed regarding any Shareholder Litigation. The Company Parties shall give Newco Acquiror the opportunity to consult with the Company Parties regarding (but not to control) the defense or settlement of any such stockholder litigationShareholder Litigation, shall give due consideration to Newco’s Acquiror's advice with respect to such stockholder litigation Shareholder Litigation and shall not settle any such stockholder litigation Shareholder Litigation without the prior written consent of Newco unless such settlement requires only an immaterial payment by the CompanyAcquiror, contains no restrictions on the Company’s operations, and contains no admission of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco has been advised and kept informed in accordance with the terms of this Section 6.9) would not have a Company Material Adverse Effect (a “Proposed Settlement”), (ii) Newco does not consent to such Proposed Settlement and (iii) the ultimate resolution of such litigation is less favorable to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, be unreasonably withheld or be considered in determining the existence or occurrence of, a Company Material Adverse Effectdelayed. In addition, the Company shall not cooperate with any third party that may hereafter seek to restrain or prohibit or otherwise oppose any of the Merger Mergers and shall cooperate with Newco Acquiror, REIT Merger Sub, OP Merger Sub and Montgomery Merger Sub to resist any such effort to restrain or prohibit or otherwise prohibxx xx xxxxrwise oppose the MergerMergers.

Certain Litigation. Each of In the parties hereto shall promptly advise the other parties orally and in writing of event that any litigation commenced by any stockholder of related to (i) this Agreement and/or the Company after Contemplated Transactions, (ii) the date hereof against such party or any of its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support AcelRx Merger Agreement and/or the transactions provided for herein and therein. In additioncontemplated thereby or (iii) the Melinta Merger Agreement and/or the transactions contemplated thereby, subject to a customary joint defense agreementis brought by, or threatened in writing by, any Person against the Company and/or its directors or officers, the Company shall promptly notify Parent of such litigation and shall keep Newco Parent reasonably informed regarding any litigation commenced by any stockholder of with respect to the status thereof. Notwithstanding anything to the contrary herein (but subject to the following sentence), the Company after shall have the date hereof against right to control the Company or defense of any of its directors or Affiliates relating to this Agreement, such litigation; provided that the Merger, the Voting and Support Agreement or the transactions provided for herein and therein. The Company shall give Newco the Parent the opportunity to consult with participate, at the Company regarding (but not to control) Parent’s expense, in the defense or settlement of any such stockholder litigation, litigation and the Company shall give due consideration to Newcothe Parent’s advice with respect to such stockholder litigation and litigation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not settle settle, offer to settle, or enter into any negotiations or agreements with respect to the settlement or potential settlement of any such stockholder litigation without the prior written consent of Newco unless such Parent, which consent shall not be unreasonably conditioned, withheld or delayed (provided that, with respect solely to any litigation referred to in clause (i) of this Section 5.10, Parent shall not withhold its consent if the settlement requires only involves (a) solely the payment of an immaterial payment aggregate amount not to exceed $400,000 and supplemental disclosure (provided, further that the 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), (b) no admission of wrongdoing or liability, (c) no injunctive or similar relief, (d) a complete and unconditional release from the Companynamed plaintiff(s) of all defendants in respect of all disclosure claims then pending relating to this Agreement and the Contemplated Transactions, contains (e) the withdrawal or dismissal of all claims and actions then pending relating to this Agreement and the Contemplated Transactions and (f) no restrictions on the Company’s operations, ability to conduct its business following the Closing). Each of the Parent and contains no admission of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco has been advised and kept informed in accordance with the terms of this Section 6.9) would not have a Company Material Adverse Effect (a “Proposed Settlement”), (ii) Newco does not consent to such Proposed Settlement and (iii) the ultimate resolution of such litigation is less favorable to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, or be considered in determining the existence or occurrence of, a Company Material Adverse Effect. In addition, the Company shall not cooperate with any third party that may hereafter seek to restrain notify the other promptly of the commencement, or prohibit or otherwise oppose the Merger and shall cooperate with Newco to resist commencement threatened in writing, of any such effort to restrain or prohibit or otherwise oppose the Mergerlitigation of which it has received notice.

Certain Litigation. Each of Notwithstanding anything to the parties hereto shall promptly advise the other parties orally and contrary contained in writing of any litigation commenced by any stockholder of the Company after the date hereof against such party or any of its directors or Affiliates relating to this Agreement, the Mergeroutcome of the currently pending litigation commenced against the Post Authority of New York and New Jersey (the "Port Authority") and the Company and/or one or more of its subsidiaries in the United States District Court for the Eastern District of New York (styled as Case No.: CV96-3793), and any related legal proceeding in state or federal court including without limitation any reasonably related legal proceedings instituted by individual members of the Voting coalition which is the plaintiff in the aforementioned proceeding involving the lease dated March 29, 1996 between the Company and Support Agreement and/or the transactions provided for herein and therein. In additionPort Authority (the "Port Authority Lease"), subject shall not constitute an event which gives rise to a customary joint defense agreementfailure of a condition to Parent's and Acquisition Sub's respective obligations under this Agreement (including without limitation, if the Port Authority Lease is deemed unenforceable and the Company shall keep Newco reasonably informed regarding any litigation commenced by any stockholder has not secured or occupied another location prior to the expiration of the Company after Company's lease at 550 Xxxxxxxx Xxxxxx, Brooklyn, New York), or which otherwise provides Parent or Acquisition Sub with the date hereof against right to decline to consummate the Company or any Merger as a result of its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support Agreement or the transactions provided for herein and thereina failure of a closing condition. The Company shall give Newco has, prior to the opportunity to consult with date hereof, delivered a true and correct copy of the Indemnification Agreement, dated October 8, 1996, by and between the Port Authority and the Company regarding and/or one or more of its subsidiaries (but not the "Indemnification Agreement"). The Company (a) shall keep Parent and its counsel advised in writing of the status of, and material developments in, the pending legal proceeding referred to controlabove, (b) shall notify Parent and its counsel in writing of the defense or settlement commencement of any such stockholder litigationrelated legal proceeding, (c) shall give due consideration to Newco’s advice with respect to such stockholder litigation preserve its rights under the Indemnification Agreement, and (d) shall not settle or compromise the pending legal proceeding or any such stockholder litigation related legal proceeding without the prior written consent of Newco unless Parent and Acquisition Sub, which consent shall not be unreasonably withheld. B. Public Announcements. Parent and the Company shall consult with each other before issuing any press release or otherwise making any public statements or announcements with respect to this Agreement or any transaction contemplated herein and shall not issue any such settlement requires only an immaterial payment press release or make any such public statement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that a party may, without the prior consent of the other party, issue such press release or make such public statement or announcement as may be required by law if it has used its reasonable best efforts to consult with the Company, contains no restrictions on the Company’s operations, other party and contains no admission of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco to obtain such party's consent but has been advised and kept informed in accordance with the terms of this Section 6.9) would not have a Company Material Adverse Effect (a “Proposed Settlement”), (ii) Newco does not consent unable to such Proposed Settlement and (iii) the ultimate resolution of such litigation is less favorable do so. Notwithstanding anything to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, or be considered contrary set forth in determining the existence or occurrence of, a Company Material Adverse Effect. In additionthis Agreement, the Company shall not cooperate with not, and shall use its best efforts to ensure that its stockholders, directors, officers, employees, agents, advisors or affiliates do not, disclose any third party that may hereafter seek information concerning Parent or any of its affiliates without the prior written consent of a majority of the equity holders of Parent. Access to restrain or prohibit or otherwise oppose any information concerning Parent and its affiliates shall be limited by the Company only to those employees, advisors and representatives who have a need to receive any such information for the purpose of consummating the Merger and shall cooperate with Newco the other transactions contemplated by this Agreement and who are under an enforceable obligation to resist any the Company to hold such effort to restrain or prohibit or otherwise oppose information in confidence under similar terms and conditions as set forth in the Merger.Confidentiality Agreement. A.

Certain Litigation. Each Prior to the earlier of the parties hereto Effective Time or the valid termination of this Agreement, the Company shall promptly advise control the other parties orally and in writing defense of any litigation commenced by any stockholder of pending or threatened Legal Proceeding against the Company after the date hereof against such party or any of and/or its directors or Affiliates officers relating to this Agreement, the MergerMerger or the other Transactions (whether directly or on behalf of the Company or otherwise); provided, the Voting and Support Agreement and/or the transactions provided for herein and therein. In addition, subject to a customary joint defense agreement, that the Company shall keep Newco reasonably informed regarding any litigation commenced by any stockholder of the Company after the date hereof against the Company or any of its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support Agreement or the transactions provided for herein and therein. The Company shall give Newco the opportunity to consult with the Company regarding (but not to control) the defense or settlement promptly notify Parent of any such stockholder litigationLegal Proceeding, keep Parent reasonably and promptly informed with respect to the status thereof, give Parent the right to participate in, and the right to review and comment on all material filings or responses to be made by the Company in connection with, any such Legal Proceeding (and shall give due consideration to NewcoParent’s comments and other advice with respect to such stockholder Legal Proceeding, including with respect to strategy and any significant decisions related thereto), and give Parent the opportunity to consult on the settlement, release, waiver or compromise of any such Legal Proceeding; provided, that this Section 6.12 shall not require the Company to provide, or cause to be provided, any information the disclosure of which would reasonably be expected to result in the loss of any attorney-client privilege or work product protection; provided, further that the Company shall use reasonable best efforts to make appropriate substitute arrangements to allow access in a manner that does not result in waiver of such privilege. The Company shall in good faith take such comments into account, and no such settlement, release, waiver or compromise of such litigation shall be agreed to without Parent’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). This Section 6.12 is without prejudice to the provisions in Section 3.1(b) relating to Dissenting Shares and shall not settle any such stockholder litigation without the prior written consent of Newco unless such settlement requires only an immaterial payment by apply to Legal Proceedings between the Company, contains no restrictions on the Company’s operationsone hand, and contains no admission of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco has been advised and kept informed in accordance with the terms of this Section 6.9) would not have a Company Material Adverse Effect (a “Proposed Settlement”)Parent or Guarantor, (ii) Newco does not consent to such Proposed Settlement and (iii) the ultimate resolution of such litigation is less favorable to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, or be considered in determining the existence or occurrence of, a Company Material Adverse Effect. In addition, the Company shall not cooperate with any third party that may hereafter seek to restrain or prohibit or otherwise oppose the Merger and shall cooperate with Newco to resist any such effort to restrain or prohibit or otherwise oppose the Mergerother hand.

Certain Litigation. Each of In the parties hereto shall promptly advise the other parties orally and in writing of event that any litigation commenced by any stockholder of related to (i) this Agreement and/or the Company after Contemplated Transactions or (ii) the date hereof against such party or any of its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support AcelRx Merger Agreement and/or the transactions provided for herein and therein. In additioncontemplated thereby, subject to a customary joint defense agreementis brought by, or threatened in writing by, any Person against the Company and/or its directors or officers, the Company shall promptly notify Parent of such litigation and shall keep Newco Parent reasonably informed regarding any litigation commenced by any stockholder of with respect to the status thereof. Notwithstanding anything to the contrary herein (but subject to the following sentence), the Company after shall have the date hereof against right to control the Company or defense of any of its directors or Affiliates relating to this Agreement, such litigation; provided that the Merger, the Voting and Support Agreement or the transactions provided for herein and therein. The Company shall give Newco the Parent the opportunity to consult with participate, at the Company regarding (but not to control) Parent’s expense, in the defense or settlement of any such stockholder litigation, litigation and the Company shall give due consideration to Newcothe Parent’s advice with respect to such stockholder litigation and litigation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not settle settle, offer to settle, or enter into any negotiations or agreements with respect to the settlement or potential settlement of any such stockholder litigation without the prior written consent of Newco unless such Parent, which consent shall not be unreasonably conditioned, withheld or delayed (provided that, with respect solely to any litigation referred to in clause (i) of this Section 5.10, Parent shall not withhold its consent if the settlement requires only involves (a) solely the payment of an immaterial payment aggregate amount not to exceed $400,000 and supplemental disclosure (provided, further that the 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), (b) no admission of wrongdoing or liability, (c) no injunctive or similar relief, (d) a complete and unconditional release from the Companynamed plaintiff(s) of all defendants in respect of all disclosure claims then pending relating to this Agreement and the Contemplated Transactions, contains (e) the withdrawal or dismissal of all claims and actions then pending relating to this Agreement and the Contemplated Transactions) and (f) no restrictions on the Company’s operations, ability to conduct its business following the Closing. Each of the Parent and contains no admission of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco has been advised and kept informed in accordance with the terms of this Section 6.9) would not have a Company Material Adverse Effect (a “Proposed Settlement”), (ii) Newco does not consent to such Proposed Settlement and (iii) the ultimate resolution of such litigation is less favorable to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, or be considered in determining the existence or occurrence of, a Company Material Adverse Effect. In addition, the Company shall not cooperate with any third party that may hereafter seek to restrain notify the other promptly of the commencement, or prohibit or otherwise oppose the Merger and shall cooperate with Newco to resist commencement threatened in writing, of any such effort to restrain or prohibit or otherwise oppose the Mergerlitigation of which it has received notice.

Certain Litigation. Each of In the parties hereto shall promptly advise event that any litigation related to this Agreement and/or the other parties orally and Contemplated Transactions is brought by, or threatened in writing of by, any litigation commenced by any stockholder of Person against the Company after the date hereof against such party or any of and/or its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support Agreement and/or the transactions provided for herein and therein. In addition, subject to a customary joint defense agreementofficers, the Company shall promptly notify Parent of such litigation and shall keep Newco Parent reasonably informed regarding any litigation commenced by any stockholder of with respect to the status thereof. Notwithstanding anything to the contrary herein (but subject to the following sentence), the Company after shall have the date hereof against right to control the Company or defense of any of its directors or Affiliates relating to this Agreement, such litigation; provided that the Merger, the Voting and Support Agreement or the transactions provided for herein and therein. The Company shall give Newco Parent the opportunity to consult with the Company regarding (but not to control) participate, at Parent’s expense, in the defense or settlement of any such stockholder litigation, the Company shall give Parent the right to review and comment in advance on all filings or responses to be made by the Company in connection with any such litigation (and the Company shall consider in good faith any reasonable changes thereto proposed by Parent) and the Company shall otherwise give due consideration to NewcoParent’s advice with respect to such stockholder litigation and litigation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not settle settle, offer to settle, or enter into any negotiations or agreements with respect to the settlement or potential settlement of any such stockholder litigation without the prior written consent of Newco unless Parent, which consent shall not be unreasonably conditioned, withheld or delayed (provided, that, Parent shall not withhold its consent if the settlement involves (a) solely the payment of an aggregate amount not to exceed the amount set forth on Schedule 5.10 and such settlement requires only an immaterial payment is fully covered by the Company’s insurance policies (other than any applicable deductible), contains and supplemental disclosure (provided, further 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), (b) no admission of wrongdoing or liability, (c) no injunctive or similar relief, (d) a complete and unconditional release from the named plaintiff(s) of all defendants in respect of all disclosure claims then pending relating to this Agreement and the Contemplated Transactions, (e) the withdrawal or dismissal of all claims and actions then pending relating to this Agreement and the Contemplated Transactions and (f) no restrictions on the Company’s operations, ability to conduct its business following the Closing). Each of Parent and contains no admission of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco has been advised and kept informed in accordance with the terms of this Section 6.9) would not have a Company Material Adverse Effect (a “Proposed Settlement”), (ii) Newco does not consent to such Proposed Settlement and (iii) the ultimate resolution of such litigation is less favorable to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, or be considered in determining the existence or occurrence of, a Company Material Adverse Effect. In addition, the Company shall not cooperate with any third party that may hereafter seek to restrain notify the other promptly of the commencement, or prohibit or otherwise oppose the Merger and shall cooperate with Newco to resist commencement threatened in writing, of any such effort to restrain or prohibit or otherwise oppose the Mergerlitigation of which it has received notice.

Certain Litigation. Each The Company shall defend, indemnify and hold harmless Elevation and its Affiliates and each director, officer, member, partner, employee and agent of such Persons (the parties hereto shall promptly advise the other parties orally “Indemnitees”) against any out-of-pocket: costs, penalties, judgments, awards, disbursements, amounts paid in settlement or compromise and in writing expenses (including reasonable attorneys’ fees and expenses) (collectively “Damages”) arising out of or resulting from any litigation allegation or claim commenced by any stockholder of the Company or made on or after the date hereof against such party by any holder of Company Securities (on their own behalf or any on behalf of its directors or Affiliates the Company) relating to this Agreement, the Merger, the Voting and Support Agreement and/or the transactions provided for herein and therein. In addition, subject to a customary joint defense agreement, the Company shall keep Newco reasonably informed regarding any litigation commenced by any stockholder of the Company after the date hereof against the Company or any of its directors or Affiliates relating to this Agreement, the Merger, the Voting and Support Agreement or the transactions contemplated hereby (“Stockholder Litigation”), provided for herein and therein. The Company shall give Newco the opportunity to consult with that the Company regarding (but will not to control) the defense or settlement of be liable for any such stockholder litigationDamages to the extent that such Damages are judicially determined to have resulted primarily from an Indemnitee’s express acts or omissions that are in bad faith or constitute willful misconduct, shall give due consideration to Newco’s advice with respect to and upon such stockholder litigation a judicial determination Elevation will, and shall not settle will cause each other Indemnitee to, promptly reimburse the Company for any such stockholder litigation without the prior written consent of Newco unless such settlement requires only an immaterial payment amounts previously paid by the Company, contains no restrictions on Company for which the Company’s operations, and contains no admission of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco has been advised and kept informed in accordance with Company is not liable pursuant to the terms of this Section 6.9) would not have 5.7. At the Company’s request, Elevation and its Affiliates shall consent to the entry of a Company Material Adverse Effect (a “Proposed Settlement”), (ii) Newco does judgment or enter into any settlement with respect to any Stockholder Litigation to which they are parties provided that such judgment or settlement includes an unconditional release of each Indemnitee with respect to such Stockholder Litigation without imposing any obligations or liabilities on any Indemnitee. Elevation and the other Indemnitees shall not consent to such Proposed Settlement and (iii) the ultimate resolution entry of such litigation is less favorable a judgment or enter into any settlement of claims against them in any Stockholder Litigation without the written consent of the Company, not to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, or be considered in determining the existence or occurrence of, a Company Material Adverse Effect. In addition, the Company shall not cooperate with any third party that may hereafter seek to restrain or prohibit or otherwise oppose the Merger and shall cooperate with Newco to resist any such effort to restrain or prohibit or otherwise oppose the Mergerunreasonably withheld.

Certain Litigation. Each of the parties hereto Party shall promptly advise the other parties orally and in writing Parties of any litigation Legal Proceedings commenced by any stockholder of the Company after the date hereof or threatened against such party Party or any of its directors directors, officers (in their capacity as such) or controlled Affiliates by any Company Shareholders (on their own behalf or on behalf of the Company), before any Governmental Authority, relating to this Agreement, the MergerMerger or the other transactions contemplated hereby, or that would otherwise prevent or materially impede, interfere with, hinder or delay the Voting consummation of the Merger (“Transaction Litigation”), and Support Agreement and/or the transactions provided for herein and therein. In addition, subject to a customary joint defense agreement, the Company shall keep Newco the other Parties reasonably informed regarding any litigation such Transaction Litigation. The Company shall promptly notify the other Parties of any Legal Proceeding that may be threatened or asserted in writing, brought, or commenced by any stockholder of the Company after the date hereof against the Company or any of its directors or Affiliates relating the Company Subsidiaries, that would have been listed in 3.26 of the Company Disclosure Letter, if such Legal Proceeding, had arisen prior to this Agreement, the Merger, the Voting and Support Agreement or the transactions provided for herein and thereindate hereof. The Company Each Party shall give Newco the other Parties the opportunity to consult with the Company such Party regarding (but not to control) the defense or settlement of any such stockholder litigation, Transaction Litigation and shall give due consideration to Newco’s advice consider such other Parties’ views with respect to such stockholder litigation Transaction Litigation; provided that Parent shall also have the right to participate in the defense of any such Transaction Litigation to the extent permissible under applicable Law and the Company shall fully cooperate with Parent with respect thereto. The Company agrees that it shall not settle settle, compromise or come to an arrangement regarding, or make an offer or agree to settle, compromise or come to an arrangement regarding, any such stockholder litigation Transaction Litigation commenced against the Company, any Company Subsidiary or any director or officer thereof without the prior written consent of Newco unless such settlement requires only an immaterial payment by the Company, contains no restrictions on the Company’s operations, and contains no admission Parent which shall not be unreasonably withheld or delayed. After receipt of fault by the Company. In the event that (i) a proposed settlement of any stockholder litigation (of which Newco has been advised and kept informed in accordance with the terms of this Section 6.9) would not have a Company Material Adverse Effect (a “Proposed Settlement”), (ii) Newco does not consent to such Proposed Settlement and (iii) the ultimate resolution of such litigation is less favorable to the Company and its Subsidiaries than the Proposed Settlement, then such resolution and the effects thereof on the Company and its Subsidiaries shall not constitute, or be considered in determining the existence or occurrence of, a Company Material Adverse Effect. In additionShareholder Approval, the Company shall not cooperate with Parent and, if requested by Parent, use its reasonable commercial efforts to settle, compromise or come to an arrangement regarding any third party that may hereafter seek to restrain or prohibit or otherwise oppose the Merger and shall cooperate unresolved Transaction Litigation in accordance with Newco to resist any such effort to restrain or prohibit or otherwise oppose the MergerParent’s direction.