OF ITS OBLIGATIONS UNDER SECTION 2.4
TO REPAY TO THE COMPANY
ANY EXCESS PAYMENTS IT MAY HAVE RECEIVED, WITHOUT REGARD TO WHETHER THE
DETERMINATION THAT AN EXCESS PAYMENT WAS MADE TO SUCH MEMBER OCCURS BEFORE OR
AFTER SUCH MEMBER HAS OPTED OUT OF THIS AGREEMENT.
(C)
FOR THE AVOIDANCE OF DOUBT, IN THE EVENT THAT ALL OF THE MEMBERS
OPT OUT OF THIS AGREEMENT, FROM AND AFTER THE EFFECTIVE DATE OF THE OPT OUT
NOTICE OF THE LAST MEMBER TO OPT OUT, (I) THE COMPANY SHALL CONTROL AND MAKE ALL
DECISIONS REGARDING THE PROSECUTION OF THE LITIGATION (INCLUDING, WITHOUT
LIMITATION, WHETHER TO ABANDON THE LITIGATION) IN ITS SOLE AND ABSOLUTE
DISCRETION, (II) THE COMPANY SHALL BEAR ALL EXPENSES INCURRED AFTER THE
EFFECTIVE DATE OF SUCH LAST OPT OUT IF THE COMPANY CHOOSES TO PURSUE THE
LITIGATION, AND (III) THE COMPANY SHALL BE ENTITLED TO RETAIN ANY TAX SAVINGS
REALIZED BY THE COMPANY OR ANY CONSOLIDATED GROUP AS A
14
RESULT OF THE UTILIZATION OF ANY MEMBER-SOURCED NOL IN ANY TAXABLE PERIOD ENDING
AFTER THE EFFECTIVE DATE OF THE OPT OUT NOTICE OF THE LAST MEMBER TO OPT OUT.
ARTICLE IV
COVENANTS
Section 4.1
Prosecution of Litigation by the Company; Settlement;
Periodic Reports; Expenses.
(A)
IN EACH CASE AS DIRECTED BY THE MEMBERS PURSUANT TO
SECTION 3.1(C) HEREOF, THE COMPANY SHALL CAUSE TO PROSECUTE IN GOOD FAITH THE
LITIGATION AND/OR SEEK A SETTLEMENT OF THE LITIGATION.
(B)
NONE OF THE PARENT, THE COMPANY, ANY COMPANY SUBSIDIARY, OR THEIR
AFFILIATES SHALL MAKE ANY SETTLEMENT DECISION WITHOUT OBTAINING PRIOR APPROVAL
FROM THE APPLICABLE MAJORITY AS DETERMINED IN ACCORDANCE WITH THE LAST SENTENCE
OF SECTION 3.1(C).
(C)
UNTIL THE LITIGATION HAS BEEN SETTLED OR IS FINAL AND NOT SUBJECT
TO FURTHER JUDICIAL REVIEW (BY APPEAL OR OTHERWISE), EACH OF THE PARENT, THE
COMPANY, THE COMPANY SUBSIDIARIES, THEIR AFFILIATES AND THE MEMBERS SHALL
COOPERATE IN ORDER TO ENSURE THAT (I) ALL OF THE MEMBERS RECEIVE, BY THE LAST
BUSINESS DAY OF EACH FISCAL QUARTER OF THE COMPANY, A REPORT DESCRIBING THE
STATUS OF THE LITIGATION, WHICH REPORT SHALL DESCRIBE, IN SUMMARY FASHION, THE
TOTAL EXPENSES INCURRED THROUGH THE DATE OF SUCH REPORT, THE STATUS OF ALL
PENDING IRS OR COURT PROCEEDINGS RELATED TO THE LITIGATION, AND THE STATUS OF
ANY SETTLEMENT NEGOTIATIONS AMONG THE PARENT, THE COMPANY, THE COMPANY
SUBSIDIARIES AND THEIR AFFILIATES AND THE DEFENDANTS WITH RESPECT TO THE
LITIGATION AND (II) EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW OR COURT
ORDER, ALL OF THE MEMBERS ARE GRANTED ACCESS TO ANY AND ALL RECORDS, DOCUMENTS,
PERSONNEL AND ANY OTHER SOURCES OF INFORMATION THAT ARE IN THE POSSESSION,
CUSTODY OR CONTROL OF THE PARENT, THE COMPANY AND THEIR AFFILIATES AS THE
MEMBERS SHALL DETERMINE ARE REASONABLY NECESSARY OR DESIRABLE IN ORDER TO REVIEW
SETTLEMENT DECISIONS AND STRATEGIC DECISIONS, IF ANY.
THE PARENT, THE COMPANY,
THE COMPANY SUBSIDIARIES, AND THEIR AFFILIATES SHALL COOPERATE WITH THE MEMBERS
IN PROVIDING THE ASSISTANCE OF ANY OF THEIR OFFICERS AND EMPLOYEES AND, TO THE
EXTENT THAT THE PARENT OR