Privilege Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Distribution Effective Time have been and will be rendered for the benefit of Ironwood and its Subsidiaries, including, as applicable, the members of the Cyclerion Group. Accordingly, with respect to such pre-Distribution services, the Parties agree as follows: (A) Ironwood shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the New Ironwood Pharmaceutical Business, whether or not the Privileged Information is in the possession or under the control of a member of the Ironwood Group or the Cyclerion Group and (B) Ironwood shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Ironwood Retained Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Ironwood Group or the Cyclerion Group; (ii) (A) Cyclerion shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the Cyclerion Pharmaceutical Business, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Group or the Ironwood Group and (B) Cyclerion shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Cyclerion Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Group or the Ironwood Group; (iii) If Ironwood and Cyclerion in good faith do not agree as to whether certain information is Privileged Information, or whether certain Privileged Information is subject to Section 7.7(a)(i) or Section 7.7(a)(ii), then the information shall be treated as Shared Privileged Information subject to Section 7.7(b); (iv) Cyclerion agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Ironwood (or any member of its Group) may have a Privilege, without the written consent of Ironwood; and (v) Ironwood agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Cyclerion (or any member of its Group) may have a Privilege, without the written consent of Cyclerion. (b) The Parties agree that they shall have an equal right with respect to all Privileges related to legal and other professional services that have been and will be provided prior to the Distribution Effective Time not allocated pursuant to Section 7.7(a). With respect to such pre-Distribution services and related Privileged Information (“Shared Privileged Information”), the Parties agree as follows: (i) Shared Privileged Information shall be subject to a shared Privilege among such Parties involved, or having an interest, in the claims, proceedings, litigation, disputes or other matters at issue; (ii) No Party may (or cause or permit any member of its Group to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law with respect to Shared Privileged Information, without the written consent of the other Party, which shall not be unreasonably withheld or delayed; (iii) If a dispute arises between or among the Parties or their respective Group members regarding whether a Privilege should be waived to protect or advance the interest of any Party (or members of its Group) with respect to Shared Privileged Information, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party and members of its Group, and shall not unreasonably withhold consent to any request for waiver by the other Party, and each Party specifically agrees that it shall not withhold consent to waive for any purpose except in good faith to protect the legitimate interests of its Group; and (iv) If, within fifteen (15) days of a Party’s providing a written request to the other Party to waive a Privilege over Shared Privileged Information, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether the Privilege should be waived with respect to such Shared Privileged Information, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance the legitimate interests of its Group, the requesting Party shall provide the objecting Party fifteen (15) days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days of receipt of such notice to commence proceedings to enjoin such waiver or seek related relief, pursuant to Section 8.2(d) and under applicable Law, shall be deemed full and effective consent to such waiver. In the event proceedings are commenced as described above, the Parties agree that any such Privilege shall not be waived by either Party until the final determination of such dispute. (c) The Parties agree that Shared Privileged Information shall continue to be held subject to Privilege from disclosure to third parties even if adversity of interest may subsequently be discerned or arise between Parties or their respective Group members. Further, in the event a Party or any member of its Group becomes adverse to the other Party or any member of its Group, each Party agrees that it shall not (and shall not cause or permit any member of its Group to) seek to disqualify any law firms who have or have had access to Shared Privileged Information from continuing to represent members of the other Party’s Group, as applicable, solely by having, or having had access to such Shared Privileged Information. (d) Nothing in this Section 7.7 shall be construed or interpreted to restrict the right or authority of the Parties to enter into any further written agreement concerning Privileged Information. (e) The transfer of all information pursuant to this Agreement is made in reliance on the agreement of Ironwood or Cyclerion as set forth in Section 7.6 and this Section 7.7, to maintain the confidentiality of Privileged Information, and to assert and maintain any applicable Privilege according to the terms of this Section 7.7. The access to information being granted pursuant to Section 7.2 and Section 7.3, the agreement to provide witnesses and individuals pursuant to Section 7.4, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 and the transfer of Privileged Information between the Parties and the members of their respective Groups pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 4 contracts
Sources: Separation Agreement (Ironwood Pharmaceuticals Inc), Separation Agreement (Cyclerion Therapeutics, Inc.), Separation Agreement (Cyclerion Therapeutics, Inc.)
Privilege Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Distribution Effective Time have been and will be rendered for the benefit of Ironwood bluebird and its Subsidiaries, including, as applicable, the members of the Cyclerion 2seventy Group. Accordingly, with respect to such pre-Distribution services, the Parties agree as follows:
(i) (A) Ironwood bluebird shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the New Ironwood Pharmaceutical Severe Genetic Disease Business, whether or not the Privileged Information is in the possession or under the control of a member of the Ironwood bluebird Group or the Cyclerion 2seventy Group and (B) Ironwood bluebird shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Ironwood bluebird Retained Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Ironwood bluebird Group or the Cyclerion 2seventy Group;
(ii) (A) Cyclerion 2seventy shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the Cyclerion Pharmaceutical Oncology Business, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion 2seventy Group or the Ironwood bluebird Group and (B) Cyclerion 2seventy shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Cyclerion 2seventy Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion 2seventy Group or the Ironwood bluebird Group;
(iii) If Ironwood bluebird and Cyclerion 2seventy in good faith do not agree as to whether certain information is Privileged Information, or whether certain Privileged Information is subject to Section 7.7(a)(i) or Section 7.7(a)(ii), then the information shall be treated as Shared Privileged Information subject to Section 7.7(b);
(iv) Cyclerion 2seventy agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Ironwood bluebird (or any member of its Group) may have a Privilege, without the written consent of Ironwoodbluebird; and
(v) Ironwood bluebird agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Cyclerion 2seventy (or any member of its Group) may have a Privilege, without the written consent of Cyclerion2seventy.
(b) The Parties agree that they shall have an equal right with respect to all Privileges related to legal and other professional services that have been and will be provided prior to the Distribution Effective Time not allocated pursuant to Section 7.7(a). With respect to such pre-Distribution services and related Privileged Information (“Shared Privileged Information”), the Parties agree as follows:
(i) Shared Privileged Information shall be subject to a shared Privilege among such Parties involved, or having an interest, in the claims, proceedings, litigation, disputes or other matters at issue;
(ii) No Party may (or cause or permit any member of its Group to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law with respect to Shared Privileged Information, without the written consent of the other Party, which shall not be unreasonably withheld withheld, conditioned or delayed;
(iii) If a dispute arises between or among the Parties or their respective Group members regarding whether a Privilege should be waived to protect or advance the interest of any Party (or members of its Group) with respect to Shared Privileged Information, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party and members of its Group, and shall not unreasonably withhold consent to any request for waiver by the other Party, and each Party specifically agrees that it shall not withhold consent to waive for any purpose except in good faith to protect the legitimate interests of its Group; and
(iv) If, within fifteen (15) days Business Days of a Party’s providing a written request to the other Party to waive a Privilege over Shared Privileged Information, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether the Privilege should be waived with respect to such Shared Privileged Information, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance the legitimate interests of its Group, the requesting Party shall provide the objecting Party fifteen (15) daysBusiness Days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days Business Days of receipt of such notice to commence proceedings to enjoin such waiver or seek related relief, pursuant to Section 8.2(d) and under applicable Law, shall be deemed full and effective consent to such waiver. In the event proceedings are commenced as described above, the Parties agree that any such Privilege shall not be waived by either Party until the final determination of such dispute.
(c) The Parties agree that Shared Privileged Information shall continue to be held subject to Privilege from disclosure to third parties Third Parties even if adversity of interest may subsequently be discerned or arise between Parties or their respective Group members. Further, in the event a Party or any member of its Group becomes adverse to the other Party or any member of its Group, each Party agrees that it shall not (and shall not cause or permit any member of its Group to) seek to disqualify any law firms who have or have had access to Shared Privileged Information from continuing to represent members of the other Party’s Group, as applicable, solely by having, or having had access to such Shared Privileged Information.
(d) Nothing in this Section 7.7 shall be construed or interpreted to restrict the right or authority of the Parties to enter into any further written agreement concerning Privileged Information.
(e) The transfer of all information pursuant to this Agreement is made in reliance on the agreement of Ironwood bluebird or Cyclerion 2seventy as set forth in Section 7.6 and this Section 7.7, to maintain the confidentiality of Privileged Information, and to assert and maintain any applicable Privilege according to the terms of this Section 7.7. The access to information being granted pursuant to Section 7.2 and Section 7.3, the agreement to provide witnesses and individuals pursuant to Section 7.4, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 and the transfer of Privileged Information between the Parties and the members of their respective Groups pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 3 contracts
Sources: Separation Agreement (Bluebird Bio, Inc.), Separation Agreement (2seventy Bio, Inc.), Separation Agreement (2seventy Bio, Inc.)
Privilege Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Distribution Effective Time have been and will be rendered for the benefit of Ironwood Alkermes and its Subsidiaries, including, as applicable, the members of the Cyclerion Mural Group. Accordingly, with respect to such pre-Distribution services, the Parties agree as follows:
(A) Ironwood Alkermes shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the New Ironwood Pharmaceutical Neuroscience Business, whether or not the Privileged Information is in the possession or under the control of a member of the Ironwood Alkermes Group or the Cyclerion Mural Group and (B) Ironwood Alkermes shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Ironwood Alkermes Retained Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Ironwood Alkermes Group or the Cyclerion Mural Group;
(ii) (A) Cyclerion Mural shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the Cyclerion Pharmaceutical Oncology Business, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Mural Group or the Ironwood Alkermes Group and (B) Cyclerion Mural shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Cyclerion Mural Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Mural Group or the Ironwood Alkermes Group;
(iii) If Ironwood Alkermes and Cyclerion Mural in good faith do not agree as to whether certain information is Privileged Information, or whether certain Privileged Information is subject to Section 7.7(a)(i7.8(a)(i) or Section 7.7(a)(ii7.8(a)(ii), then the information shall be treated as Shared Privileged Information subject to Section 7.7(b7.8(b);
(iv) Cyclerion ▇▇▇▇▇ agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Ironwood Alkermes (or any member of its Group) may have a Privilege, without the written consent of IronwoodAlkermes; and
(v) Ironwood Alkermes agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Cyclerion Mural (or any member of its Group) may have a Privilege, without the written consent of CyclerionMural.
(b) The Parties agree that they shall have an equal right with respect to all Privileges related to legal and other professional services that have been and will be provided prior to the Distribution Effective Time not allocated pursuant to Section 7.7(a7.8(a). With respect to such pre-Distribution services and related Privileged Information (“Shared Privileged Information”), the Parties agree as follows:
(i) Shared Privileged Information shall be subject to a shared Privilege among such Parties involved, or having an interest, in the claims, proceedings, litigation, disputes or other matters at issue;
(ii) No Party may (or cause or permit any member of its Group to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law with respect to Shared Privileged Information, without the written consent of the other Party, which shall not be unreasonably withheld withheld, conditioned or delayed;
(iii) If a dispute arises between or among the Parties or their respective Group members regarding whether a Privilege should be waived to protect or advance the interest of any Party (or members of its Group) with respect to Shared Privileged Information, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party and members of its Group, and shall not unreasonably withhold consent to any request for waiver by the other Party, and each Party specifically agrees that it shall not withhold consent to waive for any purpose except in good faith to protect the legitimate interests of its Group; and
(iv) If, within fifteen (15) days Business Days of a Party’s providing a written request to the other Party to waive a Privilege over Shared Privileged Information, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether the Privilege should be waived with respect to such Shared Privileged Information, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance the legitimate interests of its Group, the requesting Party shall provide the objecting Party fifteen (15) daysBusiness Days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days Business Days of receipt of such notice to commence proceedings to enjoin such waiver or seek related relief, pursuant to Section 8.2(d) and under applicable Law, shall be deemed full and effective consent to such waiver. In the event proceedings are commenced as described above, the Parties agree that any such Privilege shall not be waived by either Party until the final determination of such dispute.
(c) The Parties agree that Shared Privileged Information shall continue to be held subject to Privilege from disclosure to third parties Third Parties even if adversity of interest may subsequently be discerned or arise between Parties or their respective Group members. Further, in the event a Party or any member of its Group becomes adverse to the other Party or any member of its Group, each Party agrees that it shall not (and shall not cause or permit any member of its Group to) seek to disqualify any law firms who have or have had access to Shared Privileged Information from continuing to represent members of the other Party’s Group, as applicable, solely by having, or having had access to such Shared Privileged Information.
(d) Nothing in this Section 7.7 7.8 shall be construed or interpreted to restrict the right or authority of the Parties to enter into any further written agreement concerning Privileged Information.
(e) The transfer of all information pursuant to this Agreement is made in reliance on the agreement of Ironwood Alkermes or Cyclerion Mural as set forth in Section 7.6 7.7 and this Section 7.77.8, to maintain the confidentiality of Privileged Information, and to assert and maintain any applicable Privilege according to the terms of this Section 7.77.8. The access to information being granted pursuant to Section 7.2 and Section 7.3, the agreement to provide witnesses and individuals pursuant to Section 7.47.5, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 and the transfer of Privileged Information between the Parties and the members of their respective Groups pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 2 contracts
Sources: Separation Agreement (Mural Oncology PLC), Separation Agreement (Mural Oncology PLC)
Privilege Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Distribution Effective Time (whether by on behalf of outside counsel, in-house counsel or other legal professionals) have been and will be rendered for the collective benefit of Ironwood the Resideo Group , and its Subsidiaries, including, as applicable, that each of the members of the Cyclerion Group. Accordingly, Resideo Group and the ADI Group shall be deemed to be the client in connection with such services with respect to such preperiods prior to the Distribution for the purposes of asserting all privileges, immunities or other protections from disclosure which may be asserted under applicable Law, including attorney-Distribution servicesclient privilege, business strategy privilege, joint defense privilege, common interest privilege, and protection under the work-product doctrine (“Privilege”). The Parties agree recognize that legal and other professional services will be provided following the Distribution, which services will be rendered solely for the benefit of the Resideo Group or the ADI Group, as follows:the case may be.
(Ab) Ironwood Resideo shall be entitled, in perpetuity, entitled to control the assertion or waiver of all privileges and immunities in connection with any Information subject to Privilege (“Privileged Information”) that relates solely to the Resideo Retained Business or the Distribution and not to the operations of the ADI Business, whether or not the Privileged Information is in possession or under the control of any member of the Resideo Group or any member of the ADI Group. Resideo shall also be entitled to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to any Resideo Retained Assets or Resideo Retained Liabilities, and not any ADI Assets or ADI Liabilities, in connection with any Actions that are now pending or may be asserted in the New Ironwood Pharmaceutical Businessfuture, whether or not the Privileged Information is in the possession or under the control of a any member of the Ironwood Resideo Group or any member of the Cyclerion Group and ADI Group.
(Bc) Ironwood ADI SpinCo shall also be entitled, in perpetuity, entitled to control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to the operations of the ADI Business and not to the Resideo Retained Business or the Distribution, whether or not the Privileged Information is in possession or under the control of any member of the ADI Group or any member of the Resideo Group. ADI SpinCo shall also be entitled to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to any Ironwood ADI Assets or ADI Liabilities, and not any Resideo Retained Assets or Resideo Retained Liabilities, in connection with any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of a any member of the Ironwood ADI Group or any member of the Cyclerion Resideo Group;.
(iid) (A) Cyclerion Subject to the remaining provisions of this Section 6.6, the Parties agree that Resideo shall be entitled, in perpetuity, entitled to control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to the Cyclerion Pharmaceutical Business, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Group or the Ironwood Group and (B) Cyclerion shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Cyclerion Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Group or the Ironwood Group;
(iii) If Ironwood and Cyclerion in good faith do not agree as to whether certain information is Privileged InformationActions, or whether certain Privileged Information is subject to Section 7.7(a)(i) threatened or Section 7.7(a)(ii)contemplated Actions, then the information shall be treated as Shared Privileged Information subject to Section 7.7(b);
or other matters that involve both Parties (iv) Cyclerion agrees that it shall not (and shall cause the or one or more members of its Group not totheir respective Groups) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in respect of which Ironwood (or any member of its Group) may both Parties have a Privilege, without the written consent of Ironwood; and
(v) Ironwood agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted Liabilities under any applicable Law, and in which Cyclerion (or any member of its Group) may have a Privilege, without the written consent of Cyclerionthis Agreement.
(b) The Parties agree that they shall have an equal right with respect to all Privileges related to legal and other professional services that have been and will be provided prior to the Distribution Effective Time not allocated pursuant to Section 7.7(a). With respect to such pre-Distribution services and related Privileged Information (“Shared Privileged Information”), the Parties agree as follows:
(i) Shared Privileged Information shall be subject to a shared Privilege among such Parties involved, or having an interest, in the claims, proceedings, litigation, disputes or other matters at issue;
(ii) No Party may (or cause or permit any member of its Group to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law with respect to Shared Privileged Information, without the written consent of the other Party, which shall not be unreasonably withheld or delayed;
(iiie) If a any dispute arises between or among the Parties or any members of their respective Group members regarding whether a Privilege privilege or immunity should be waived to protect or advance the interest interests of either Party or any Party (or members member of its Group) with respect to Shared Privileged Informationtheir respective Groups, each Party agrees that it shall shall: (i) negotiate with the other Party in good faith, shall ; (ii) endeavor to minimize any prejudice to the rights of the other Party and the members of its Group, ; and shall (iii) not unreasonably withhold withhold, delay or condition consent to any request for waiver by the other Party.
(f) Upon receipt by either Party, and each Party specifically agrees or by any member of its respective Group, of any subpoena, discovery or other request (or of written notice that it shall not withhold consent will receive or has received such subpoena, discovery or other request) that may reasonably be expected to waive for any purpose except result in good faith the production or disclosure of Privileged Information subject to protect the legitimate interests of its Group; and
(iv) If, within fifteen (15) days of a Party’s providing a written request shared privilege or immunity or as to which the other Party has the sole right hereunder to waive assert a Privilege over Shared Privileged Informationprivilege or immunity, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether the Privilege should be waived with respect to such Shared Privileged Information, and the requesting or if either Party determines that a Privilege should nonetheless be waived to protect obtains knowledge or advance the legitimate interests of its Group, the requesting Party shall provide the objecting Party fifteen (15) days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days of receipt of such notice to commence proceedings to enjoin such waiver or seek related relief, pursuant to Section 8.2(d) and under applicable Law, shall be deemed full and effective consent to such waiver. In the event proceedings are commenced as described above, the Parties agree becomes aware that any such Privilege shall not be waived by either Party until the final determination of such dispute.
(c) The Parties agree that Shared Privileged Information shall continue to be held subject to Privilege from disclosure to third parties even if adversity of interest may subsequently be discerned or arise between Parties or their respective Group members. Furtherits, in the event a Party or any member of its Group becomes adverse respective Group’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests (or have received written notice that they will receive or have received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of such Privileged Information, such Party shall promptly notify the other Party of the existence of any such subpoena, discovery or any member of its Group, each Party agrees that it shall not (other request and shall not cause or permit any member of its Group to) seek provide the other Party a reasonable opportunity to disqualify any law firms who have or have had access to Shared review the Privileged Information and to assert any rights it or they may have, under this Section 6.6 or otherwise, to prevent the production or disclosure of such Privileged Information; provided that if such Party is prohibited by applicable Law from continuing disclosing the existence of such subpoena, discovery or other request, such Party shall provide written notice of such related information for which disclosure is not prohibited by applicable Law and use reasonable best efforts to represent members of inform the other Party’s GroupParty of any related information such Party reasonably determines is necessary or appropriate for the other Party to be informed of to enable the other Party to review the Privileged Information and to assert its rights, as applicableunder this Section 6.6 or otherwise, solely by having, to prevent the production or having had access to disclosure of such Shared Privileged Information.
(d) Nothing in this Section 7.7 shall be construed or interpreted to restrict the right or authority of the Parties to enter into any further written agreement concerning Privileged Information.
(eg) The transfer of all information Information pursuant to this Agreement is made in reliance on the agreement of Ironwood Resideo or Cyclerion ADI SpinCo as set forth in Section 7.6 6.5 and this Section 7.76.6, to maintain the confidentiality of Privileged Information, Information and to assert and maintain any applicable Privilege according to the terms of this Section 7.7Privilege. The access to information Information being granted pursuant to Section 7.2 5.5 and Section 7.36.2, the agreement to provide witnesses and individuals pursuant to Section 7.45.5 and Section 6.3, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 5.5, and the transfer of Privileged Information between the Parties and the members of their respective Groups Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise. The Parties further agree that: (i) the exchange by one Party to the other Party of any Information that should not have been exchanged pursuant to the terms of Section 6.5 shall not be deemed to constitute a waiver of any privilege or immunity that has been or may be asserted under this Agreement or otherwise with respect to such Privileged Information; and (ii) the Party receiving such Privileged Information shall promptly return such Privileged Information to the Party who has the right to assert the privilege or immunity.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Adi Global Distribution Inc.)
Privilege Matters. (a) The Parties recognize that legal that:
(i) Legal and other professional services that have been and will be provided prior to the Distribution Separation Effective Time have been and will be rendered for the collective benefit of Ironwood and its Subsidiaries, including, as applicable, each of the members of the Cyclerion Remainco Group and the Spinco Group. Accordingly, and that each of the members of the Remainco Group and the Spinco Group should be deemed to be the client with respect to such pre-Distribution servicesseparation services for the purposes of asserting all privileges, immunities, or other protections from disclosure which may be asserted under applicable Legal Requirements, including attorney-client privilege, business strategy privilege, joint defense privilege, common interest privilege, and protection under the work-product doctrine (“Privilege”). The Parties agree shall have a shared Privilege with respect to all Privileged Information which relates to pre-separation services rendered for the collective benefit of each of the members of Remainco Group and the Spinco Group. For the avoidance of doubt, Privileged Information within the scope of this Section 5.7 includes, but is not limited to, services rendered by legal counsel retained or employed by any Party (or any member of such Party’s respective Group), including outside counsel and in-house counsel.
(ii) Legal and other professional services will be provided following the Separation Effective Time to each of Remainco and Spinco. The Parties further recognize that certain of such post-separation services will be rendered solely for the benefit of Remainco or Spinco, as the case may be, while other such post-separation services may be rendered with respect to claims, proceedings, litigation, disputes or other matters for the benefit of both Remainco and Spinco.
(b) The Parties agree, notwithstanding the definition of Spinco Assets, as follows:
(Ai) Ironwood Remainco shall be entitleddeemed, in perpetuity, to own and control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to the New Ironwood Pharmaceutical Remainco Retained Business, whether or not the Privileged Information is in the possession or under the control of Spinco or RMT Partner or a member of the Ironwood Group their respective Group, agent, or the Cyclerion Group and (B) Ironwood Representative of either. Remainco shall also be entitleddeemed, in perpetuity, to own and control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to any Ironwood Remainco Retained LiabilitiesLiabilities resulting from any Legal Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of Spinco or RMT Partner or a member of the Ironwood Group their respective Group, agent, or the Cyclerion Group;Representative of either.
(ii) (A) Cyclerion RMT Partner shall be entitleddeemed, in perpetuity, to own and control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to the Cyclerion Pharmaceutical Spinco Business, whether or not the Privileged Information is in the possession or under the control of Remainco or RMT Partner or a member of the Cyclerion Group their respective Group, agent, or the Ironwood Group and (B) Cyclerion Representative of either. RMT Partner shall also be entitleddeemed, in perpetuity, to own and control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to any Cyclerion LiabilitiesSpinco Liabilities resulting from any Legal Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of Remainco or RMT Partner or a member of the Cyclerion Group their respective Group, agent, or the Ironwood Group;Representative of either.
(iii) If Ironwood Remainco and Cyclerion in good faith RMT Partner do not agree as to whether certain information Information is Privileged Information, or whether certain Privileged Information is subject to Section 7.7(a)(i) or Section 7.7(a)(ii), then the information Information shall be treated as Shared Privileged Information, and that Party who believes such Information is Privileged Information subject shall be entitled to control the assertion or waiver of all privileges and immunities in connection with any such Information unless the Parties otherwise agree. The Parties shall utilize the procedures set forth in Article VII and Section 7.7(b);
(iv) Cyclerion agrees that it shall not (and shall cause 8.14 to resolve any disputes as to whether any Information relates solely to the members of its Group not to) waiveRemainco Retained Business, solely to the Spinco Business, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, both the Remainco Retained Business and in which Ironwood (or any member of its Group) may have a Privilege, without the written consent of Ironwood; and
(v) Ironwood agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Cyclerion (or any member of its Group) may have a Privilege, without the written consent of CyclerionSpinco Business.
(bc) The Subject to Sections 5.7(d) and 5.7(e), and applicable Legal Requirements, the Parties agree that they shall have an equal right a shared privilege or immunity with respect to all Privileges related communications identified in Section 5.7(a) as to legal and other professional services that have been and will be provided prior to the Distribution Effective Time which such communications are not otherwise allocated pursuant to Section 7.7(a). With respect to such pre-Distribution services and related Privileged Information (“Shared Privileged Information”5.7(b), the Parties agree as follows:
(i) Shared Privileged Information shall be subject and all privileges and immunities relating to a shared Privilege among such Parties involvedany Legal Proceeding, or having an interest, in the claims, proceedingsdisputes, litigation, disputes or other matters at issue;that involve both Remainco and RMT Partner (or one or more of the members of their respective Group).
(iid) No The Parties agree that no shared privilege or immunity, as defined in Sections 5.7(a) and 5.7(c), may be waived by either Party may (or cause or permit any member of its respective Group to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law with respect to Shared Privileged Information, without the written consent of the other Party, which shall not be unreasonably withheld or delayed;.
(iiie) If a any dispute arises between Remainco and RMT Partner, or among the Parties or members of their respective Group members Group, regarding whether a Privilege shared privilege or immunity should be waived to protect or advance the interest interests of any either Party (or and/or the members of its their respective Group) with respect to Shared Privileged Information, each such Party agrees that it shall (i) negotiate with the other applicable Party in good faith, shall ; (ii) endeavor to minimize any prejudice to the rights of the other Party and or any of the members of its Group, ; and shall (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, and each Party specifically agrees that it shall not withhold consent (and shall cause each member of its Group not to), without the other Party’s consent, agree to waive the waiver of a privilege or immunity for any purpose except in good faith to protect the its own legitimate interests of its Group; and
(iv) If, within fifteen (15) days of a Party’s providing a written request to the other Party to waive a Privilege over Shared Privileged Information, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether the Privilege should be waived with respect to such Shared Privileged Information, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance the legitimate interests of its Group, the requesting Party shall provide the objecting Party fifteen (15) days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days of receipt of such notice to commence proceedings to enjoin such waiver or seek related relief, pursuant to Section 8.2(d) and under applicable Law, shall be deemed full and effective consent to such waiver. In the event proceedings are commenced as described above, the Parties agree that any such Privilege shall not be waived by either Party until the final determination of such disputeinterests.
(cf) The Parties agree that Shared Privileged Information shall continue to be held subject to Privilege from disclosure to third parties even if adversity of interest may subsequently be discerned or arise between Parties or their respective Group members. Further, in the event a Party Upon receipt by RMT Partner or any member of its Group becomes adverse of any subpoena, discovery or other request that may reasonably be expected to result in the other Party production or disclosure of Information subject to a shared privilege or immunity or as to which Remainco or any member of the Remainco Group has the sole right hereunder to assert a privilege or immunity or if RMT Partner obtains knowledge that it or any member of its Group’s current or former directors, officers, agents or employees has received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, RMT Partner shall promptly provide notice to Remainco of the existence of the request (which notice shall be delivered to Remainco no later than three (3) Business Days following the receipt of any such subpoena, discovery or other request, in each Party agrees that it shall not (and shall not cause case, by RMT Partner or permit any member of its Group toGroup) seek and shall provide Remainco with a reasonable opportunity to disqualify review the Information and to assert any law firms who have rights it or have had access they may have, including under this Section 5.7 or otherwise, to Shared Privileged Information from continuing to represent members prevent the production or disclosure of the other Party’s Group, as applicable, solely by having, or having had access to such Shared Privileged Information.
(dg) Nothing Upon receipt by Remainco or by any member of the Remainco Group, of any subpoena, discovery or other request that may reasonably be expected to result in the production or disclosure of Information subject to a shared privilege or immunity or as to which RMT Partner or any member of the RMT Partner Group has the sole right hereunder to assert a privilege or immunity or if Remainco obtains knowledge that it or any member of its Group’s current or former directors, officers, agents or employees has received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, Remainco shall promptly provide notice to RMT Partner of the existence of the request (which notice shall be delivered to RMT Partner no later than three (3) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide RMT Partner with a reasonable opportunity to review the Information and to assert any rights it or they may have, including under this Section 7.7 shall be construed 5.7 or interpreted otherwise, to restrict prevent the right production or authority disclosure of the Parties to enter into any further written agreement concerning such Privileged Information.
(eh) The transfer Parties agree that they have or may in the future have common legal interests in the Remainco Retained Liabilities and any corresponding legal rights, in the Spinco Liabilities and any corresponding legal rights, in Privileged Information described in Section 5.7(a) and in the preservation of all information the protected status of such Privileged Information. The Parties agree that any disclosure or exchange of such Privileged Information between and among themselves in order to further the Parties’ common legal interests shall not waive any applicable privilege or immunity.
(i) Any furnishing of, or access to, Information pursuant to this Agreement is made in reliance on the agreement of Ironwood Remainco, RMT Partner and/or Spinco set forth in Section 5.6 and this Section 5.7 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. The Parties further agree that (i) the exchange by Remainco or Cyclerion RMT Partner (or any member of its respective Group) to the other Party (or any member of its Group) of any Privileged Information that should not have been transferred pursuant to the terms of this Article V or Section 1.1(108)(ix) shall not be deemed to constitute a waiver of any privilege or immunity that has been or may be asserted under this Agreement or otherwise with respect to such Privileged Information; and (ii) the Party receiving (or for which a member of its Group has received) such Privileged Information shall promptly return such Privileged Information to the Party (or the applicable member of its Group) who has the right to assert the privilege or immunity.
(j) In furtherance of, and without limitation to, the Parties’ agreement under this Section 5.7, Remainco and RMT Partner shall, and shall cause the applicable members of their respective Groups to, use reasonable best efforts to maintain their respective separate and joint privileges and immunities.
(k) In the event of any litigation or dispute between the Parties, or any members of their respective Groups, either such Party may waive a Privilege in which the other Party or member of such Group has a shared Privilege, without obtaining the consent of the other Party; provided that such waiver of a shared Privilege shall be effective only as to the use of Privileged Information with respect to the litigation or dispute between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared Privilege with respect to third parties. The Parties agree to treat such Information as Confidential Information in accordance with Section 5.6, including, but not limited to obtaining appropriate protective orders and sealing of the Information to protect the Privilege as to others. The Parties agree to protect Privileged Information subject to a shared privilege or immunity to prevent waivers as to third parties to the fullest extent permitted by law.
(l) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of Remainco, RMT Partner and/or Spinco as set forth in Section 7.6 5.6 and this Section 7.75.7, to maintain the confidentiality of Privileged Information, Information subject to a shared privilege or immunity and to assert and maintain any applicable Privilege according to the terms of this Section 7.7Privilege. The access to information Information being granted pursuant to Section 7.2 Sections 4.5, 5.2 and Section 7.35.3 hereof, the agreement to provide witnesses and individuals pursuant to Section 7.4Sections 4.5 and 5.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 4.5 hereof, and the transfer of Privileged Information between the Parties and the their respective members of their respective Groups Group pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.
(m) The provisions of this Section 5.7 shall become effective as of the Effective Time.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Regal Beloit Corp)
Privilege Matters. (a) The Parties recognize that legal that:
(i) Legal and other professional services that have been and will be provided prior to the Distribution Separation Effective Time have been and will be rendered for the collective benefit of Ironwood and its Subsidiaries, including, as applicable, each of the members of the Cyclerion Remainco Group and the Spinco Group. Accordingly, and that each of the members of the Remainco Group and the Spinco Group should be deemed to be the client with respect to such pre-Distribution servicesseparation services for the purposes of asserting all privileges, immunities, or other protections from disclosure which may be asserted under applicable Legal Requirements, including attorney-client privilege, business strategy privilege, joint defense privilege, common interest privilege, and protection under the work-product doctrine (“Privilege”). The Parties agree shall have a shared Privilege with respect to all Privileged Information which relates to pre-separation services rendered for the collective benefit of each of the members of Remainco Group and the Spinco Group. For the avoidance of doubt, Privileged Information within the scope of this Section 5.7 includes, but is not limited to, services rendered by legal counsel retained or employed by any Party (or any member of such Party’s respective Group), including outside counsel and in-house counsel.
(ii) Legal and other professional services will be provided following the Separation Effective Time to each of Remainco and Spinco. The Parties further recognize that certain of such post-separation services will be rendered solely for the benefit of Remainco or Spinco, as the case may be, while other such post-separation services may be rendered with respect to claims, proceedings, litigation, disputes or other matters for the benefit of both Remainco and Spinco.
(b) The Parties agree, notwithstanding the definition of Spinco Assets, as follows:
(Ai) Ironwood Remainco shall be entitleddeemed, in perpetuity, to own and control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to the New Ironwood Pharmaceutical Remainco Retained Business, whether or not the Privileged Information is in the possession or under the control of Spinco or RMT Partner or a member of the Ironwood Group their respective Group, agent, or the Cyclerion Group and (B) Ironwood Representative of either. Remainco shall also be entitleddeemed, in perpetuity, to own and control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to any Ironwood Remainco Retained LiabilitiesLiabilities resulting from any Legal Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of Spinco or RMT Partner or a member of the Ironwood Group their respective Group, agent, or the Cyclerion Group;Representative of either.
(ii) (A) Cyclerion RMT Partner shall be entitleddeemed, in perpetuity, to own and control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to the Cyclerion Pharmaceutical Spinco Business, whether or not the Privileged Information is in the possession or under the control of Remainco or RMT Partner or a member of the Cyclerion Group their respective Group, agent, or the Ironwood Group and (B) Cyclerion Representative of either. RMT Partner shall also be entitleddeemed, in perpetuity, to own and control the assertion or waiver of Privilege all privileges and immunities in connection with any Privileged Information that relates solely to any Cyclerion LiabilitiesSpinco Liabilities resulting from any Legal Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of Remainco or RMT Partner or a member of the Cyclerion Group their respective Group, agent, or the Ironwood Group;Representative of either.
(iii) If Ironwood Remainco and Cyclerion in good faith RMT Partner do not agree as to whether certain information Information is Privileged Information, or whether certain Privileged Information is subject to Section 7.7(a)(i) or Section 7.7(a)(ii), then the information Information shall be treated as Shared Privileged Information, and that Party who believes such Information is Privileged Information subject shall be entitled to control the assertion or waiver of all privileges and immunities in connection with any such Information unless the Parties otherwise agree. The Parties shall utilize the procedures set forth in Article VII and Section 7.7(b);
(iv) Cyclerion agrees that it shall not (and shall cause 8.14 to resolve any disputes as to whether any Information relates solely to the members of its Group not to) waiveRemainco Retained Business, solely to the Spinco Business, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, both the Remainco Retained Business and in which Ironwood (or any member of its Group) may have a Privilege, without the written consent of Ironwood; and
(v) Ironwood agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Cyclerion (or any member of its Group) may have a Privilege, without the written consent of CyclerionSpinco Business.
(bc) The Subject to Sections 5.7(d) and 5.7(e), and applicable Legal Requirements, the Parties agree that they shall have an equal right a shared privilege or immunity with respect to all Privileges related communications identified in Section 5.7(a) as to legal and other professional services that have been and will be provided prior to the Distribution Effective Time which such communications are not otherwise allocated pursuant to Section 7.7(a). With respect to such pre-Distribution services and related Privileged Information (“Shared Privileged Information”5.7(b), the Parties agree as follows:
(i) Shared Privileged Information shall be subject and all privileges and immunities relating to a shared Privilege among such Parties involvedany Legal Proceeding, or having an interest, in the claims, proceedingsdisputes, litigation, disputes or other matters at issue;that involve both Remainco and RMT Partner (or one or more of the members of their respective Group).
(iid) No The Parties agree that no shared privilege or immunity, as defined in Sections 5.7(a) and 5.7(c), may be waived by either Party may (or cause or permit any member of its respective Group to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law with respect to Shared Privileged Information, without the written consent of the other Party, which shall not be unreasonably withheld or delayed;.
(iiie) If a any dispute arises between Remainco and RMT Partner, or among the Parties or members of their respective Group members Group, regarding whether a Privilege shared privilege or immunity should be waived to protect or advance the interest interests of any either Party (or and/or the members of its their respective Group) with respect to Shared Privileged Information, each such Party agrees that it shall (i) negotiate with the other applicable Party in good faith, shall faith; (ii) endeavor to minimize any prejudice to the rights of the other Party and or any of the members of its Group, Group; and shall (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, and each Party specifically agrees that it shall not withhold consent (and shall cause each member of its Group not to), without the other Party’s consent, agree to waive the waiver of a privilege or immunity for any purpose except in good faith to protect the its own legitimate interests of its Group; and
(iv) If, within fifteen (15) days of a Party’s providing a written request to the other Party to waive a Privilege over Shared Privileged Information, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether the Privilege should be waived with respect to such Shared Privileged Information, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance the legitimate interests of its Group, the requesting Party shall provide the objecting Party fifteen (15) days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days of receipt of such notice to commence proceedings to enjoin such waiver or seek related relief, pursuant to Section 8.2(d) and under applicable Law, shall be deemed full and effective consent to such waiver. In the event proceedings are commenced as described above, the Parties agree that any such Privilege shall not be waived by either Party until the final determination of such disputeinterests.
(cf) The Parties agree that Shared Privileged Information shall continue to be held subject to Privilege from disclosure to third parties even if adversity of interest may subsequently be discerned or arise between Parties or their respective Group members. Further, in the event a Party Upon receipt by RMT Partner or any member of its Group becomes adverse of any subpoena, discovery or other request that may reasonably be expected to result in the other Party production or disclosure of Information subject to a shared privilege or immunity or as to which Remainco or any member of the Remainco Group has the sole right hereunder to assert a privilege or immunity or if RMT Partner obtains knowledge that it or any member of its Group’s current or former directors, officers, agents or employees has received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, RMT Partner shall promptly provide notice to Remainco of the existence of the request (which notice shall be delivered to Remainco no later than three (3) Business Days following the receipt of any such subpoena, discovery or other request, in each Party agrees that it shall not (and shall not cause case, by RMT Partner or permit any member of its Group toGroup) seek and shall provide Remainco with a reasonable opportunity to disqualify review the Information and to assert any law firms who have rights it or have had access they may have, including under this Section 5.7 or otherwise, to Shared Privileged Information from continuing to represent members prevent the production or disclosure of the other Party’s Group, as applicable, solely by having, or having had access to such Shared Privileged Information.
(dg) Nothing Upon receipt by Remainco or by any member of the Remainco Group, of any subpoena, discovery or other request that may reasonably be expected to result in the production or disclosure of Information subject to a shared privilege or immunity or as to which RMT Partner or any member of the RMT Partner Group has the sole right hereunder to assert a privilege or immunity or if Remainco obtains knowledge that it or any member of its Group’s current or former directors, officers, agents or employees has received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, Remainco shall promptly provide notice to RMT Partner of the existence of the request (which notice shall be delivered to RMT Partner no later than three (3) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide RMT Partner with a reasonable opportunity to review the Information and to assert any rights it or they may have, including under this Section 7.7 shall be construed 5.7 or interpreted otherwise, to restrict prevent the right production or authority disclosure of the Parties to enter into any further written agreement concerning such Privileged Information.
(eh) The transfer Parties agree that they have or may in the future have common legal interests in the Remainco Retained Liabilities and any corresponding legal rights, in the Spinco Liabilities and any corresponding legal rights, in Privileged Information described in Section 5.7(a) and in the preservation of all information the protected status of such Privileged Information. The Parties agree that any disclosure or exchange of such Privileged Information between and among themselves in order to further the Parties’ common legal interests shall not waive any applicable privilege or immunity.
(i) Any furnishing of, or access to, Information pursuant to this Agreement is made in reliance on the agreement of Ironwood Remainco, RMT Partner and/or Spinco set forth in Section 5.6 and this Section 5.7 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. The Parties further agree that (i) the exchange by Remainco or Cyclerion RMT Partner (or any member of its respective Group) to the other Party (or any member of its Group) of any Privileged Information that should not have been transferred pursuant to the terms of this Article V or Section 1.1(108)(ix) shall not be deemed to constitute a waiver of any privilege or immunity that has been or may be asserted under this Agreement or otherwise with respect to such Privileged Information; and (ii) the Party receiving (or for which a member of its Group has received) such Privileged Information shall promptly return such Privileged Information to the Party (or the applicable member of its Group) who has the right to assert the privilege or immunity.
(j) In furtherance of, and without limitation to, the Parties’ agreement under this Section 5.7, Remainco and RMT Partner shall, and shall cause the applicable members of their respective Groups to, use reasonable best efforts to maintain their respective separate and joint privileges and immunities.
(k) In the event of any litigation or dispute between the Parties, or any members of their respective Groups, either such Party may waive a Privilege in which the other Party or member of such Group has a shared Privilege, without obtaining the consent of the other Party; provided that such waiver of a shared Privilege shall be effective only as to the use of Privileged Information with respect to the litigation or dispute between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared Privilege with respect to third parties. The Parties agree to treat such Information as Confidential Information in accordance with Section 5.6, including, but not limited to obtaining appropriate protective orders and sealing of the Information to protect the Privilege as to others. The Parties agree to protect Privileged Information subject to a shared privilege or immunity to prevent waivers as to third parties to the fullest extent permitted by law.
(l) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of Remainco, RMT Partner and/or Spinco as set forth in Section 7.6 5.6 and this Section 7.75.7, to maintain the confidentiality of Privileged Information, Information subject to a shared privilege or immunity and to assert and maintain any applicable Privilege according to the terms of this Section 7.7Privilege. The access to information Information being granted pursuant to Section 7.2 Sections 4.5, 5.2 and Section 7.35.3 hereof, the agreement to provide witnesses and individuals pursuant to Section 7.4Sections 4.5 and 5.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 4.5 hereof, and the transfer of Privileged Information between the Parties and the their respective members of their respective Groups Group pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.
(m) The provisions of this Section 5.7 shall become effective as of the Effective Time.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Rexnord Corp)
Privilege Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Distribution Effective Time have been and will be rendered for the benefit of Ironwood Alkermes and its Subsidiaries, including, as applicable, the members of the Cyclerion Mural Group. Accordingly, with respect to such pre-Distribution services, the Parties agree as follows:
(A) Ironwood Alkermes shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the New Ironwood Pharmaceutical Neuroscience Business, whether or not the Privileged Information is in the possession or under the control of a member of the Ironwood Alkermes Group or the Cyclerion Mural Group and (B) Ironwood Alkermes shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Ironwood Alkermes Retained Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Ironwood Alkermes Group or the Cyclerion Mural Group;
(ii) (A) Cyclerion Mural shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the Cyclerion Pharmaceutical Oncology Business, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Mural Group or the Ironwood Alkermes Group and (B) Cyclerion Mural shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Cyclerion Mural Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Mural Group or the Ironwood Alkermes Group;
(iii) If Ironwood Alkermes and Cyclerion ▇▇▇▇▇ in good faith do not agree as to whether certain information is Privileged Information, or whether certain Privileged Information is subject to Section 7.7(a)(i7.8(a)(i) or Section 7.7(a)(ii7.8(a)(ii), then the information shall be treated as Shared Privileged Information subject to Section 7.7(b7.8(b);
(iv) Cyclerion Mural agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Ironwood Alkermes (or any member of its Group) may have a Privilege, without the written consent of IronwoodAlkermes; and
(v) Ironwood Alkermes agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Cyclerion Mural (or any member of its Group) may have a Privilege, without the written consent of CyclerionMural.
(b) The Parties agree that they shall have an equal right with respect to all Privileges related to legal and other professional services that have been and will be provided prior to the Distribution Effective Time not allocated pursuant to Section 7.7(a7.8(a). With respect to such pre-Distribution services and related Privileged Information (“Shared Privileged Information”), the Parties agree as follows:
(i) Shared Privileged Information shall be subject to a shared Privilege among such Parties involved, or having an interest, in the claims, proceedings, litigation, disputes or other matters at issue;
(ii) No Party may (or cause or permit any member of its Group to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law with respect to Shared Privileged Information, without the written consent of the other Party, which shall not be unreasonably withheld withheld, conditioned or delayed;
(iii) If a dispute arises between or among the Parties or their respective Group members regarding whether a Privilege should be waived to protect or advance the interest of any Party (or members of its Group) with respect to Shared Privileged Information, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party and members of its Group, and shall not unreasonably withhold consent to any request for waiver by the other Party, and each Party specifically agrees that it shall not withhold consent to waive for any purpose except in good faith to protect the legitimate interests of its Group; and
(iv) If, within fifteen (15) days Business Days of a Party’s providing a written request to the other Party to waive a Privilege over Shared Privileged Information, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether the Privilege should be waived with respect to such Shared Privileged Information, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance the legitimate interests of its Group, the requesting Party shall provide the objecting Party fifteen (15) daysBusiness Days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days Business Days of receipt of such notice to commence proceedings to enjoin such waiver or seek related relief, pursuant to Section 8.2(d) and under applicable Law, shall be deemed full and effective consent to such waiver. In the event proceedings are commenced as described above, the Parties agree that any such Privilege shall not be waived by either Party until the final determination of such dispute.
(c) The Parties agree that Shared Privileged Information shall continue to be held subject to Privilege from disclosure to third parties Third Parties even if adversity of interest may subsequently be discerned or arise between Parties or their respective Group members. Further, in the event a Party or any member of its Group becomes adverse to the other Party or any member of its Group, each Party agrees that it shall not (and shall not cause or permit any member of its Group to) seek to disqualify any law firms who have or have had access to Shared Privileged Information from continuing to represent members of the other Party’s Group, as applicable, solely by having, or having had access to such Shared Privileged Information.
(d) Nothing in this Section 7.7 7.8 shall be construed or interpreted to restrict the right or authority of the Parties to enter into any further written agreement concerning Privileged Information.
(e) The transfer of all information pursuant to this Agreement is made in reliance on the agreement of Ironwood Alkermes or Cyclerion Mural as set forth in Section 7.6 7.7 and this Section 7.77.8, to maintain the confidentiality of Privileged Information, and to assert and maintain any applicable Privilege according to the terms of this Section 7.77.8. The access to information being granted pursuant to Section 7.2 and Section 7.3, the agreement to provide witnesses and individuals pursuant to Section 7.47.5, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 and the transfer of Privileged Information between the Parties and the members of their respective Groups pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 1 contract
Sources: Separation Agreement (Alkermes Plc.)
Privilege Matters. (a) The Parties recognize Notwithstanding that legal and other professional services that have been and will be provided the Company has, from time to time prior to the Distribution Effective Time have date hereof, been represented by ▇▇▇▇▇▇ LLP (the “Firm”), each of Buyer and will be rendered for the benefit of Ironwood and its SubsidiariesCompany agrees that, including, as applicableafter the Closing, the members Firm may represent any stockholder of the Cyclerion Group. AccordinglyCompany, with respect to such pre-Distribution servicesany other Company Equityholder, the Parties agree as follows:
(A) Ironwood shall be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with Company Equityholder Representative and/or any Privileged Information that relates solely to the New Ironwood Pharmaceutical Business, whether or not the Privileged Information is in the possession or under the control of a member of the Ironwood Group or the Cyclerion Group and (B) Ironwood shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Ironwood Retained Liabilities, whether or not the Privileged Information is in the possession or under the control of a member Affiliates of the Ironwood Group or Company Equityholder Representative in all matters related to this Agreement and the Cyclerion Group;
(ii) (A) Cyclerion shall be entitledtransactions contemplated hereby, including in perpetuity, respect of any indemnification claims pursuant to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to the Cyclerion Pharmaceutical Business, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Group or the Ironwood Group and (B) Cyclerion shall also be entitled, in perpetuity, to control the assertion or waiver of Privilege in connection with any Privileged Information that relates solely to any Cyclerion Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the Cyclerion Group or the Ironwood Group;
(iii) If Ironwood and Cyclerion in good faith do not agree as to whether certain information is Privileged Information, or whether certain Privileged Information is subject to Section 7.7(a)(i) or Section 7.7(a)(ii), then the information shall be treated as Shared Privileged Information subject to Section 7.7(b);
(iv) Cyclerion agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Ironwood (or any member of its Group) may have a Privilege, without the written consent of Ironwood; and
(v) Ironwood agrees that it shall not (and shall cause the members of its Group not to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which Cyclerion (or any member of its Group) may have a Privilege, without the written consent of Cyclerionthis Agreement.
(b) The Parties agree In the event that they shall have an equal right with respect a dispute arises between Buyer, the Company or the Surviving Corporation and a third party other than the Company Equityholder Representative, and such dispute relates to all Privileges related to legal and other professional services that have been and will be provided prior a matter for which Buyer may seek recovery pursuant to the Distribution Effective Time not allocated pursuant terms of this Agreement, Buyer or the Surviving Corporation shall assert the attorney-client privilege on behalf of the Company Equityholder Representative to Section 7.7(a). With respect prevent disclosure of privileged materials to such pre-Distribution services third party and related Privileged Information (“Shared Privileged Information”), such privilege may be waived only with the Parties agree as follows:
(i) Shared Privileged Information shall be subject to a shared Privilege among such Parties involved, or having an interest, in the claims, proceedings, litigation, disputes or other matters at issue;
(ii) No Party may (or cause or permit any member of its Group to) waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law with respect to Shared Privileged Information, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed;
(iii) If a dispute arises between or among the Parties or their respective Group members regarding whether a Privilege should be waived to protect or advance the interest of any Party (or members of its Group) with respect to Shared Privileged Information, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party and members of its Group, and shall not unreasonably withhold consent to any request for waiver by the other Party, and each Party specifically agrees that it shall not withhold consent to waive for any purpose except in good faith to protect the legitimate interests of its Group; and
(iv) If, within fifteen (15) days of a Party’s providing a written request to the other Party to waive a Privilege over Shared Privileged Information, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether the Privilege should be waived with respect to such Shared Privileged Information, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance the legitimate interests of its Group, the requesting Party shall provide the objecting Party fifteen (15) days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days of receipt of such notice to commence proceedings to enjoin such waiver or seek related relief, pursuant to Section 8.2(d) and under applicable Law, shall be deemed full and effective consent to such waiver. In the event proceedings are commenced as described above, the Parties agree that any such Privilege shall not be waived by either Party until the final determination of such disputeCompany Equityholder Representative.
(c) The Parties agree Buyer further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation, that Shared Privileged Information all communications in any form or format whatsoever between or among any of the Firm, the Company, any of the Company Equityholders, or any of the respective directors, officers employees or other representatives of the Company Equityholders or the Firm that relate solely to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or any dispute arising under this Agreement (collectively, the “Deal Communications”) shall continue be deemed to be held subject to Privilege from disclosure to third parties even if adversity retained and owned collectively by the Company Equityholders, shall be controlled by the Company Equityholder Representative on behalf of interest may subsequently be discerned or arise between Parties or their respective Group members. Further, in the event a Party or any member of its Group becomes adverse to the other Party or any member of its Group, each Party agrees that it shall not (Company Equityholders and shall not cause pass to or permit any member be claimed by Buyer or the Surviving Corporation. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Effective Time and the privilege and the expectation of its Group to) seek client confidence relating thereto shall belong solely to disqualify any law firms who have or have had access to Shared Privileged Information from continuing to represent members the Company Equityholder Representative and the Company Equityholders, shall be controlled by the Company Equityholder Representative on behalf of the other Party’s Group, as applicable, solely Company Equityholders and shall not pass to or be claimed by having, Buyer or having had access to such Shared Privileged Informationthe Surviving Corporation.
(d) Nothing in this Section 7.7 shall be construed Buyer agrees that it will not, and that it will cause the Surviving Corporation not to, knowingly and purposefully, (i) access or interpreted use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to restrict have the Company Equityholder Representative or any Company Equityholder waive the attorney-client or other privilege, or by otherwise asserting that Buyer or the Surviving Corporation has the right to waive the attorney-client or authority other privilege or (ii) seek to obtain the Deal Communications from the Firm. In furtherance of the Parties foregoing, it shall not be a breach of any provision of this Agreement if prior to enter into the Closing the Company, the Company Equityholder Representative and/or any further written agreement concerning Privileged InformationCompany Equityholder, or any of their respective directors, officers employees or other representatives, takes any action to protect from access or remove from the premises of the Company (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications; provided, that none of the Company, the Company Equityholder Representative and/or any Company Equityholder, or any of their respective directors, officers employees or other representatives, may prevent access to or otherwise remove, any materials, documents or other information not constituting Deal Communications.
(e) The transfer parties acknowledge and agree that this Section 12.11 shall not limit or otherwise prohibit the Buyer’s ability to (i) compel discovery of all information that is not subject to an attorney-client privilege in the event that such information is relevant to a dispute that arises after the Closing, or (ii) in the event that Buyer or the Surviving Corporation receives a subpoena or other discovery request pursuant to this Agreement is made in reliance on Law that calls for the agreement of Ironwood or Cyclerion as set forth in Section 7.6 and this Section 7.7search for documents that may include Deal Communications, to maintain the confidentiality of Privileged Information, and to assert and maintain any applicable Privilege according to the terms of this Section 7.7. The access to information being granted pursuant to Section 7.2 and Section 7.3, the agreement to provide witnesses and individuals pursuant to Section 7.4, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 and the transfer of Privileged Information between the Parties and the members of their respective Groups pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwisecomply with its legal obligations.
Appears in 1 contract