Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group and the CTM Group, and that each of the members of the IDT Group and the CTM Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law. (b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation services, the Parties agree as follows: (i) IDT shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM. IDT shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM; and (ii) CTM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM. CTM shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information is in the possession of or under the control of IDT or CTM. (c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them. (d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b). (e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant 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. (f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests. (g) Upon receipt by either Party or by any member of its Group of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 or otherwise to prevent the production or disclosure of such privileged information. (h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as set forth in Section 10.04 and this Section 10.05, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall 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 and Distribution Agreement (CTM Media Holdings, Inc.), Separation and Distribution Agreement (CTM Media Holdings, Inc.), Separation and Distribution Agreement (CTM Media Holdings, Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of SEACOR, the members of the IDT SEACOR Group and the CTM members of the SEACOR Marine Group, and that each of the members of the IDT Group SEACOR Group, and each of the CTM members of the SEACOR Marine Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT SEACOR shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessSEACOR Business (other than with respect to Liabilities as to which SEACOR Marine is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT SEACOR, SEACOR Marine or CTMany member of either Party’s Group. IDT SEACOR shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT SEACOR Liabilities, or other Liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT SEACOR, SEACOR Marine or CTM; andany member of either Party’s Group.
(iib) CTM SEACOR Marine shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessSEACOR Marine Business (other than with respect to Liabilities as to which SEACOR is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT SEACOR, SEACOR Marine or CTMany member of either Party’s Group. CTM SEACOR Marine shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM SEACOR Marine Liabilities, or other liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMSEACOR Marine, whether or not the privileged information is in the possession of SEACOR Marine or under the control of IDT SEACOR, SEACOR Marine or CTMany member of either Party’s Group.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT SEACOR and CTM SEACOR Marine, as set forth in Section 10.04 Sections 4.2, 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 4.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (Seacor Holdings Inc /New/), Distribution Agreement (SEACOR Marine Holdings Inc.), Distribution Agreement (SEACOR Marine Holdings Inc.)
Privileged Matters. To allocate the interests of each Party in the information as to which any Party is entitled to assert any privilege or protection from disclosure under any potentially Applicable Law (a“Privileged Information”) The Parties recognize that legal and other in connection with professional services that have been and will be provided prior to the Effective Time have been and will be rendered Closing Date for the collective benefit of each of GSAM and its Subsidiaries and GSRP and its Subsidiaries, whether or not such a privilege or protection exists or the members existence of the IDT Group such privilege or protection is in dispute (provided, however, that such assertions of privilege or protection from disclosure must be made reasonably and the CTM Group, and that each of the members of the IDT Group and the CTM Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesin good faith), the Parties hereto agree as follows:
(ia) IDT GSAM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges or protections from disclosure in connection with privileged information which relates solely Privileged Information to the IDT Businessextent it arises from the conduct of GSAM in its capacity as Manager of GSRP and, subject to Section 6.15(c), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT GSAM or CTM. IDT shall also be entitled, in perpetuity, to control the assertion any of its Subsidiaries or waiver GSRP or any of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM; andits Subsidiaries.
(iib) CTM Subject to Section 6.15(c), GSRP shall be entitled, in perpetuity, to control the assertion or waiver of all privileges or protections from disclosure in connection with privileged information Privileged Information which relates solely to the CTM BusinessBusiness (to the extent it does not arise from the conduct of GSAM in its capacity as Manager of GSRP), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT GSAM or CTM. CTM shall also be entitled, in perpetuity, to control the assertion any of its Subsidiaries or waiver GSRP or any of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information is in the possession of or under the control of IDT or CTMits Subsidiaries.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject Subject to the restrictions in this Section 10.056.15, with respect GSAM and GSRP agree that they shall have equal right to assert all privileges or protections from disclosure (“Shared Privileges”) not allocated pursuant to the terms of Section 10.05(b)6.15(a) or (b) with respect to information as to which both GSAM and GSRP or any of their respective Subsidiaries may assert a privilege or protection from disclosure, including Privileged Information which relates to the transactions contemplated hereby. All privileges Moreover, the Parties agree that they have a common or shared interest in any Privileged Information that exists as of the date hereof relating to the subject of any claimspending or future Litigation, proceedingsand such information, litigationinsofar as it is shared between the Parties, disputes, shall continue to be held in strict confidence to maintain the applicability of any privilege or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among themprotection from disclosure.
(d) No Party may None of the Parties shall, and they shall cause their respective Subsidiaries not to, waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilegeShared Privilege, without the written consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b)delayed.
(e) In the event of any litigation a Litigation between GSAM or dispute between one of its Subsidiaries, on the one hand, and GSRP or among any one of the Partiesits Subsidiaries, or any members of their respective Groups, either such Party may waive a privilege in which on the other hand, each Party or member of such other Party’s Group has shall have the right to use any information that may be subject to a shared privilegeShared Privilege, without obtaining the consent of the other Party; provided, it being understood and agreed that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation such Litigation or other dispute between GSAM or one of its Subsidiaries, on the relevant Parties and/or the applicable members of their respective Groupsone hand, and GSRP or one of its Subsidiaries, on the other hand, shall not operate as or be used by either Party as a basis for asserting a waiver of the shared privilege such Shared Privilege with respect to third parties.
(f) If a dispute arises between GSAM or one of its Subsidiaries, on the Parties one hand, and GSRP or members one of their Group its Subsidiaries, on the other hand, regarding whether a privilege Shared Privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall faith and endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party hereto or by any member of its Group respective Subsidiaries of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege Shared Privilege or as to which the other Party or one of its respective Subsidiaries has the sole right hereunder to assert a privilegeprivilege or other protection from disclosure, or if either Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees have has received any subpoena, discovery or other requests which arguably calls call for the production or disclosure of such privileged informationPrivileged Information, before disclosing the requested Privileged Information, such Party shall shall, in all cases, promptly notify the other Party party of the existence of the request request, as well as any reason why disclosure is required or recommended in spite of the existence of privilege and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they any of its Subsidiaries may have under this Section 10.05 6.15 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information. Each Party shall bear its own expenses in connection with any such request.
(h) The transfer of all information and each Party’s retention of information which may include Privileged Information of the other pursuant to this Agreement is made in reliance on the agreement agreements of IDT and CTM as set forth in Section 10.04 and this Section 10.05, the Parties hereto to maintain the confidentiality of privileged the information and to assert and maintain all applicable privilegesprivileges or protections from disclosure. Nothing provided for herein or in any Ancillary Agreement The access to information being granted and the agreement to provide witnesses herein, the furnishing of notices and documents and other cooperative efforts contemplated hereby, and the transfer of Privileged Information between and among the Parties hereto and their respective Subsidiaries pursuant hereto shall not be deemed a waiver of any privilege or protections from disclosure that has been or may be asserted under this Agreement or otherwise.
Appears in 3 contracts
Sources: Internalization Agreement (MN8 Energy, Inc.), Internalization Agreement (MN8 Energy, Inc.), Internalization Agreement (MN8 Energy, Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group Cablevision Group, and the CTM members of the AMC Group, and that each of the members of the IDT Group Cablevision Group, and each of the CTM members of the AMC Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT Cablevision shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessCablevision Business (other than with respect to Liabilities as to which AMC is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT Cablevision or CTMAMC. IDT Cablevision shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Cablevision Liabilities (including Retained Claims Liabilities), or other Liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT Cablevision or CTM; andAMC.
(iib) CTM AMC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessAMC Business (other than with respect to matters or claims that are Retained Claims Liabilities or other Liabilities as to which Cablevision is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT Cablevision or CTMAMC. CTM AMC shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM AMC Liabilities, or other liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMAMC, whether or not the privileged information is in the possession of AMC or under the control of IDT Cablevision or CTMAMC.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Cablevision and CTM AMC, as set forth in Section 10.04 Sections 4.2, 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 4.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (AMC Networks Inc.), Distribution Agreement (Cablevision Systems Corp /Ny), Distribution Agreement (AMC Networks Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group MSG Entertainment Group, and each of the CTM members of the Spinco Group, and that each of the members of the IDT Group MSG Entertainment Group, and each of the CTM Group members of the Spinco Group, should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT MSG Entertainment shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which that relates solely to the IDT BusinessMSG Entertainment Business (other than with respect to Liabilities as to which Spinco is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT MSG Entertainment or CTMSpinco. IDT MSG Entertainment shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT MSG Entertainment Liabilities (including Retained Claims Liabilities), or other Liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT MSG Entertainment or CTM; andSpinco.
(iib) CTM Spinco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which that relates solely to the CTM BusinessSpinco Business (other than with respect to matters or claims that are Retained Claims Liabilities or other Liabilities as to which MSG Entertainment is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT MSG Entertainment or CTMSpinco. CTM Spinco shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Spinco Liabilities, or other liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMSpinco, whether or not the privileged information is in the possession of Spinco or under the control of IDT MSG Entertainment or CTMSpinco.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilege, without the written consent of the other Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and that such a Party shall, to the best of that Party’s ability, keep such information confidential and limited in distribution (including, for example, not filing any such information in a public court document); and that any such use shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT MSG Entertainment and CTM Spinco, as set forth in Section 10.04 Sections 4.2, 4.3, 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 4.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (Madison Square Garden Entertainment Corp.), Distribution Agreement (MSGE Spinco, Inc.), Distribution Agreement (MSGE Spinco, Inc.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Florida Progress Group and the CTM members of the Echelon Group, and that each of the members of the IDT Florida Progress Group and the CTM members of the Echelon Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following law. To allocate the Effective Time interests of each party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any party is entitled to such post-separation servicesassert a privilege, the Parties parties agree as follows:
(ia) IDT Florida Progress shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Florida Progress Business, whether or not the privileged information is in the possession of or under the control of IDT Florida Progress or CTMEchelon. IDT Florida Progress shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Florida Progress Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTFlorida Progress, whether or not the privileged information is in the possession of or under the control of IDT Florida Progress or CTM; andEchelon.
(iib) CTM Echelon shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Echelon Business, whether or not the privileged information is in the possession of or under the control of IDT Florida Progress or CTMEchelon. CTM Echelon shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Echelon Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMEchelon, whether or not the privileged information is in the possession of Echelon or under the control of IDT Florida Progress or CTMEchelon.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.056.6, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b)Sections 6.6(a) and (b) hereto. All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT Florida Progress and CTM Echelon in respect of which both Parties Florida Progress and Echelon retain any responsibility or Liability liability under this Agreement shall be subject to a shared privilege among between them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party hereto has a shared privilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any the parties hereto, a party and a Subsidiary of the Partiesother party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of other party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party party has the sole right hereunder to assert a privilege, or if either Party party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 6.6 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Florida Progress and CTM Echelon, as set forth in Section 10.04 Sections 6.5 and this Section 10.056.6, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 6.1 and 6.2 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 5.5 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.2 hereof, and the transfer of privileged information between the parties and their respective 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.
Appears in 3 contracts
Sources: Distribution Agreement (Florida Power Corp /), Distribution Agreement (Echelon International Corp), Distribution Agreement (Echelon International Corp)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group Ralcorp Parties and the CTM GroupPost Parties, and that each of the members of the IDT Group Ralcorp Parties and the CTM Group Post Parties should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Lawlaw.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT Ralcorp or CTMPost, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT Ralcorp shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to the IDT Ralcorp Business, whether or not the privileged information Information is in the possession of or under the control of IDT Ralcorp or CTMPost. IDT Ralcorp shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information that relates solely to the subject matter of any claims constituting IDT Ralcorp Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTRalcorp, whether or not the privileged information Information is in the possession of or under the control of IDT Ralcorp or CTMPost; and
(ii) CTM Post shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to the CTM Post Business, whether or not the privileged information Information is in the possession of or under the control of IDT Ralcorp or CTMPost. CTM Post shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information that relates solely to the subject matter of any claims constituting CTM Post Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMPost, whether or not the privileged information Information is in the possession of or under the control of IDT Ralcorp or CTMPost.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.0513.09, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b13.09(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT Ralcorp and CTM Post in respect of which both Parties retain any responsibility or Liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Lawlaw, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (eSection 13.09(e) or (f) belowSection 13.09(f). Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b13.09(b).
(e) In the event of any litigation or dispute between or among any of the Parties, or any members of their respective GroupsSubsidiaries, joint ventures or partnerships, either such Party may waive a privilege in which the other Party or member of such other Party’s Group entity 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 information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, joint ventures or partnerships, respectively, and shall not operate as a waiver of the shared privilege with respect to third partiesThird Parties.
(f) If a dispute arises between the Parties or members of their Group respective Subsidiaries, joint ventures or partnerships regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group Subsidiary, joint venture or partnership thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’, joint ventures’ or partnerships’ current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged informationInformation, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 13.09 or otherwise to prevent the production or disclosure of such privileged informationInformation.
(h) The Ralcorp’s transfer of all books and records and other information to Post, and Ralcorp’s agreement to permit Post to possess privileged Information pursuant existing or generated prior to this Agreement is the Distribution Date, are made in reliance on the agreement of IDT and CTM Post’s agreement, as set forth in Section 10.04 13.08 and this Section 10.0513.09, to maintain the confidentiality of privileged information Information and to assert protect and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Section 13.01, the agreement to provide witnesses and individuals pursuant to Section 13.06 and the transfer of privileged Information to Post pursuant to this Agreement shall not be deemed a waiver of any privilege that has been or may be asserted under this Agreement Section 13.09 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Ralcorp in, or the obligations imposed upon Post by, this Section 13.09. Post’s transfer of books and records and other information to Ralcorp, and Post’s agreement to permit Ralcorp to possess privileged Information existing or generated prior to the Distribution Date, are made in reliance on Ralcorp’s agreement, as set forth in Section 13.08 and Section 13.09, to maintain the confidentiality of privileged Information and to assert and maintain all applicable privileges. The access to information being granted pursuant to Section 13.01, the agreement to provide witnesses and individuals pursuant to Section 13.06 and the transfer of privileged Information to Ralcorp pursuant to this Agreement shall not be deemed a waiver of any privilege that has been or may be asserted under this Section 13.09 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Post in, or the obligations imposed upon Ralcorp by, this Section 13.09.
Appears in 3 contracts
Sources: Separation and Distribution Agreement (Ralcorp Holdings Inc /Mo), Separation and Distribution Agreement (Post Holdings, Inc.), Separation and Distribution Agreement (Post Holdings, Inc.)
Privileged Matters. (a) The Parties recognize that legal and other To allocate the interests of each party in the Information as to which either party or any member of their respective Groups is entitled to assert a privilege in connection with professional services that have been and will be provided prior to the Effective Time have been and will be rendered Closing Date for the collective benefit of each of the members of the IDT SHC Group and the CTM Group, and that each of the members of the IDT Group and Seritage Group, whether or not such a privilege exists or the CTM Group should be deemed to be the client with respect to such pre-separation services for the purposes existence of asserting all privileges which may be asserted under applicable Law.
is in dispute (b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTMcollectively, as the case may be. With respect to such post-separation services“Common Privileges”), the Parties parties agree as follows:
(ia) IDT SHC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely does not relate primarily to the IDT BusinessTransferred Properties, whether or not the privileged information Information is in the possession of or under the control of IDT members of the SHC Group or CTMmembers of the Seritage Group. IDT shall SHC also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM; and
(ii) CTM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to any pending or future Action that is, or which SHC reasonably anticipates may become, a Liability of SHC or a member of the CTM BusinessSHC Group and that is not also, or that SHC reasonably anticipates will not become, a Liability of Seritage or any member of the Seritage Group, whether or not the privileged information Information is in the possession of or under the control of IDT members of the SHC Group or CTM. CTM members of the Seritage Group.
(b) Subject to Section 7.8(c), Seritage shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that Information which relates solely primarily to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMTransferred Properties, whether or not the privileged information Information is in the possession of or under the control of IDT members of the SHC Group or CTMmembers of the Seritage Group. Seritage also shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates to any pending or future Action that is, or which Seritage reasonably anticipates may become, a Liability of Seritage or a member of the Seritage Group and that is not also, or that Seritage reasonably anticipates will not become, a Liability of SHC or any member of the SHC Group, whether or not the privileged Information is in the possession of or under the control of members of the SHC Group or members of the Seritage Group.
(c) The Parties agree SHC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates to the Transaction or the other transactions contemplated thereby, it being understood and agreed that they shall have a shared privilege, the expectation and intention as between SHC and Seritage with equal right respect to assert or waive, subject any communications between advisors to SHC and Seritage occurring up to and including the Closing Date in connection with the Transaction and such other transactions are that the privilege and the expectation of client confidence belong exclusively to SHC.
(d) Subject to the restrictions in this Section 10.057.8, with respect SHC and Seritage agree that they shall have equal right to assert all privileges Common Privileges not allocated pursuant to the terms of Section 10.05(b7.8(a), 7.8(b) or 7.8(c) (each, a “Shared Privilege”) with respect to Information as to which the a member of either party’s Group may assert a privilege. All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect Each party shall ensure that no member of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party its Group may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilegeShared Privilege, without the written consent of the other Party, party which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b)delayed.
(e) In the event of any litigation an Action between one or dispute between or among any more members of the PartiesSeritage Group, on the one hand, and one or any more members of their respective Groupsthe SHC Group, either such Party may waive a privilege in which on the other Party or member of hand, each such other Party’s Group has Person shall have the right to use any Information that may be subject to a shared privilegeShared Privilege, without obtaining the consent of the other Party; providedparty, it being understood and agreed that such waiver of a shared privilege shall be effective only as to the use of information Information with respect to the litigation Action or other dispute between the relevant Parties and/or the applicable members of their respective Groupsthe Seritage Group, on the one hand, and members of the SHC Group, on the other hand, shall not operate as or be used by either party as a basis for asserting a waiver of the shared privilege such Shared Privilege with respect to third partiesThird Parties.
(f) If a dispute arises between any member of the Parties or members Seritage Group, on the one hand, and any member of their Group the SHC Group, on the other hand, regarding whether a privilege Shared Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall Good Faith and endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interestsparty.
(g) Upon receipt by either Party party or by any member of its Group of any subpoena, discovery or other request which that arguably calls for the production or disclosure of information Information subject to a shared privilege Shared Privilege or as to which the other Party party or a member of such other party’s Group has the sole right hereunder to assert a privilege, or if either Party party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees of any member of its Group have received any subpoena, discovery or other requests which that arguably calls call for the production or disclosure of such privileged informationInformation, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they any member of its Group may have under this Section 10.05 7.8 or otherwise to prevent the production or disclosure of such privileged informationInformation. Each party shall bear its own expenses in connection with any such request.
(h) The transfer of all Records and other Information and each party’s retention of Records and other Information that may include privileged Information of the other party pursuant to this Agreement is made in reliance on the agreement of IDT SHC and CTM Seritage, as set forth in Section 10.04 and this Section 10.05, Article VII to maintain the confidentiality of privileged information Information provided by a Disclosing Party and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement The access to Information being granted and the agreement to provide witnesses herein, the furnishing of notices and documents and other cooperative efforts contemplated hereby, and the transfer of privileged Information between and among the parties and members of their respective Groups pursuant hereto 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: Subscription, Distribution and Purchase and Sale Agreement (Seritage Growth Properties), Subscription, Distribution and Purchase and Sale Agreement (Seritage Growth Properties), Subscription, Distribution and Purchase and Sale Agreement (Seritage Growth Properties)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Tech Group and the CTM Fuels Group, and that each of the members of the IDT Tech Group and the CTM Fuels Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges and immunities which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time Time, which services will be rendered solely for the benefit of IDT the Tech Group or CTMthe Fuels Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT Tech shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT Tech Business and not to the Fuels Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Tech Group or CTMany member of the Fuels Group. IDT Tech shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Tech Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Tech Group or CTMany member of the Fuels Group; and
(ii) CTM Fuels shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM Fuels Business and not to the Tech Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Fuels Group or CTMany member of the Tech Group. CTM Fuels shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, Fuels Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Fuels Group or CTMany member of the Tech Group.
(iii) If the Parties do not agree as to whether certain information is Privileged Information, then such information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information 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 use the procedures set forth in Article VI to resolve any disputes as to whether any information relates solely to the Tech Business, solely to the Fuels Business, or to both the Tech Business and the Fuels Business.
(c) The Subject to the remaining provisions of this Section 5.08, the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All 5.08(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party.
(d) If any Dispute arises between the Parties or any members of their respective Group regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any member of their respective Group, which each Party agrees that it shall not be unreasonably withheld or delayed or as provided in subsections (ei) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon negotiate with the other Party requesting such consent. Each Party shall use its reasonable best efforts in good faith, (ii) endeavor to preserve minimize any privilege held prejudice to the rights of the other Party, and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, each Party if specifically agrees that privilege is it shall not withhold its consent to the waiver of a shared privilege or has been allocated immunity for any purpose except in good faith to the other Party pursuant to Section 10.05(b)protect its own legitimate interests.
(e) In the event of any litigation adversarial Action or dispute Dispute between or among any of the PartiesTech and Fuels, or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Partypursuant to Section 5.08(c); provided, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute Action between the relevant 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 partiesany Third Party.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party Party, or by any member of its Group such Party’s respective Group, of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or immunity or as to which the other another Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge that any of its its, or any member of its such Party’s respective Group’s ’s, current or former directors, officers, agents or employees have has received any subpoena, discovery or other requests which arguably calls for request that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information Privileged Information and to assert any rights it or they may have under this Section 10.05 5.08 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(hg) The Any furnishing of, or access or transfer of all Information of, any information pursuant to this Agreement is made in reliance on the agreement covenants and agreements of IDT Tech and CTM as Fuels set forth in Section 10.04 and this Section 10.05, 5.08 and in Section 5.09 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that (i) their respective rights to any Ancillary Agreement access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and members of their respective Groups pursuant to this Agreement, shall not be deemed a waiver of any privilege or immunity that has been or may be asserted under this Agreement or otherwiseotherwise and (ii) in the event of any transfer by one Party to the other Party of any Privileged Information that should not have been transferred pursuant to the terms of this Article V, the Party receiving such Privileged Information shall promptly return such Privileged Information to and at the request of the Party that has the right to assert the privilege or immunity and without prejudice to any longer period that may be provided for in any of the Ancillary Agreements.
(h) In connection with any matter contemplated by Section 5.07 or this Section 5.08, the Parties agree to, and to cause the applicable members of their Group to, use commercially reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 3 contracts
Sources: Master Distribution Agreement (Taronis Fuels, Inc.), Master Distribution Agreement (Taronis Fuels, Inc.), Master Distribution Agreement (Taronis Fuels, Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution (whether by outside counsel, in-house counsel or other legal professionals) have been and will be rendered for the collective benefit of each of the members of the IDT Honeywell Group and the CTM SpinCo Group, and that each of the members of the IDT Honeywell Group and the CTM SpinCo Group should shall be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time Distribution, which services will be rendered solely for the benefit of IDT the Honeywell Group or CTMthe SpinCo Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT Honeywell shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information which Information that relates solely to the IDT Honeywell Business and not to the SpinCo Business, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the Honeywell Group or CTMany member of the SpinCo Group. IDT Honeywell shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Honeywell Assets or Honeywell Liabilities and not any SpinCo Assets or SpinCo Liabilities in connection with any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the Honeywell Group or CTMany member of the SpinCo Group; and
(ii) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information which Information that relates solely to the CTM SpinCo Business and not to the Honeywell Business, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Honeywell Group. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Assets or SpinCo Liabilities and not any Honeywell Assets or Honeywell Liabilities in connection with any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Honeywell Group.
(iii) If the Parties do not agree as to whether certain information is privileged Information, then such Information shall be treated as privileged Information, and the Party that believes that such information is privileged Information shall be entitled to control the assertion or waiver of all privileges and immunities in connection with any such information until such time as it is finally judicially determined that such information is not privileged Information or unless the Parties otherwise agree.
(c) The Subject to the remaining provisions of this Section 7.08, the Parties agree that they Honeywell shall have a shared privilegebe entitled, with equal right in perpetuity, to assert control the assertion or waive, subject to the restrictions in this Section 10.05, with respect to waiver of all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All privileges relating to 7.08(b) in connection with any claims, proceedings, litigation, disputes, Actions or threatened or contemplated Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject Agreement. Honeywell agrees, on behalf of itself and each member of the Honeywell Group, not to intentionally disclose or otherwise intentionally waive any such privilege or protection without consulting SpinCo. Upon the reasonable request of Honeywell or SpinCo, in connection with any Action or threatened or contemplated Action contemplated by this Article VII, other than any Adversarial Action or threatened or contemplated Adversarial Action, Honeywell and SpinCo will enter into a shared mutually acceptable common interest agreement so as to maintain to the extent practicable any applicable attorney-client privilege among themor work product immunity of any member of either Group.
(d) No Party may waive If any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without dispute arises between the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, Parties or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either PartyParty or any member of their respective Groups, each Party agrees that it shall (i) negotiate with the other Party in good faith, shall (ii) endeavor to minimize any prejudice to the rights of the other Party, Party and shall the members of its Group and (iii) not unreasonably withhold withhold, delay or condition consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(ge) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for (or of written notice that it will or has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of information privileged Information subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge or becomes aware that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for (or have received written notice that they will or have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of such privileged informationInformation, such Party shall promptly notify the other Party of the existence of the any such subpoena, discovery or other request and shall provide the other Party a reasonable opportunity to review the information privileged Information and to assert any rights it or they may have have, under this Section 10.05 7.08 or otherwise otherwise, to prevent the production or disclosure of such privileged informationInformation; provided that if such Party is prohibited by applicable Law from 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 inform the other Party 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, under this Section 7.08 or otherwise, to prevent the production or disclosure of such privileged Information.
(hf) The Parties agree that their respective rights to any access to Information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of all privileged Information between the Parties and members of their respective Groups pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as set forth in Section 10.04 and this Section 10.05Agreement, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary 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 7.09 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 3 contracts
Sources: Separation and Distribution Agreement (Garrett Motion Inc.), Separation and Distribution Agreement (Garrett Motion Inc.), Separation and Distribution Agreement (Garrett Transportation Systems Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group Cablevision Group, and the CTM members of the MSG Group, and that each of the members of the IDT Group Cablevision Group, and each of the CTM members of the MSG Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT Cablevision shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessCablevision Business (other than with respect to Liabilities as to which MSG is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT Cablevision or CTMMSG. IDT Cablevision shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims Claims constituting IDT Cablevision Liabilities (including Retained Claims Liabilities), or other Liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT Cablevision or CTM; andMSG.
(iib) CTM MSG shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessMSG Business (other than with respect to matters or claims that are Retained Claims Liabilities or other Liabilities as to which Cablevision is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT Cablevision or CTMMSG. CTM MSG shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims Claims constituting CTM MSG Liabilities, or other liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMMSG, whether or not the privileged information is in the possession of MSG or under the control of IDT Cablevision or CTMMSG.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Cablevision and CTM MSG, as set forth in Section 10.04 Sections 4.2, 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 4.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (Cablevision Systems Corp /Ny), Distribution Agreement (Madison Square Garden, Inc.), Distribution Agreement (Madison Square Garden, Inc.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the Corporation, the members of the IDT NMR Group and the CTM members of the IMS HEALTH Group, and that each of the Corporation, the members of the IDT NMR Group and the CTM members of the IMS HEALTH Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following law. To allocate the Effective Time interests of each party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any party is entitled to such post-separation servicesassert a privilege, the Parties parties agree as follows:
(ia) IDT The Corporation shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT NMR Business, whether or not the privileged information is in the possession of or under the control of IDT the Corporation or CTMIMS HEALTH. IDT The Corporation shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT NMR Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTthe Corporation, whether or not the privileged information is in the possession of or under the control of IDT the Corporation or CTM; andIMS HEALTH.
(iib) CTM IMS HEALTH shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM IMS HEALTH Business, whether or not the privileged information is in the possession of or under the control of IDT the Corporation or CTMIMS HEALTH. CTM IMS HEALTH shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM IMS HEALTH Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, IMS HEALTH whether or not the privileged information is in the possession of or under the control of IDT the Corporation or CTMIMS HEALTH.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT the Corporation and CTM IMS HEALTH in respect of which both Parties parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party or parties of the existence of the request and shall provide the other Party party or parties a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT the Corporation and CTM IMS HEALTH, as set forth in Section 10.04 Sections 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1 and 4.2 hereof, the agreement to provide witnesses and individuals pursuant to Sections 2.9 and 3.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.3 hereof, and the transfer of privileged information between and among the parties and their respective 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.
Appears in 3 contracts
Sources: Distribution Agreement (Nielsen Media Research Inc), Distribution Agreement (Ims Health Inc), Distribution Agreement (Ims Health Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will shall be provided prior to the Effective Time have been and will shall be rendered for the collective benefit of each of the members of the IDT Aptiv Group and the CTM Delphi Technologies Group, and that each of the members of the IDT Aptiv Group and the CTM Delphi Technologies Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which and immunities that may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following after the Effective Time Time, which services will be rendered solely for the benefit of IDT the Aptiv Group or CTMthe Delphi Technologies Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT Aptiv shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT Aptiv Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the Aptiv Group or CTM. IDT the Delphi Technologies Group; Aptiv shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Aptiv Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the Aptiv Group or CTM; andthe Delphi Technologies Group;
(ii) CTM Delphi Technologies shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM Delphi Technologies Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the Aptiv Group or CTM. CTM the Delphi Technologies Group; Delphi Technologies shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, Delphi Technologies Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the Aptiv Group or CTMthe Delphi Technologies Group; and
(iii) If the Parties do not agree as to whether certain information is Privileged Information, then such information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information shall be entitled to control the assertion or waiver of all privileges and immunities in connection with any such information until such time as it is finally judicially determined that such information is not Privileged Information or unless the Parties otherwise agree. The Parties shall use the procedures set forth in Article IV to resolve any Disputes as to whether any information relates solely to the Aptiv Business, solely to the Delphi Technologies Business, or to both the Aptiv Business and the Delphi Technologies Business.
(c) The Subject to Sections 6.8(d) and 6.8(e), the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All 6.8(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among themor immunity may be waived by either Party without the written consent of the other Party.
(d) No Party may waive If any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute arises between or among any of the Parties, or any members member of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either PartyParty and/or any member of their 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, Party and shall (iii) not unreasonably withhold consent to any request for waiver by the other Party. Each Further, each Party specifically agrees that it will shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests.
(ge) Upon receipt by either Party or by any member of its the Delphi Technologies Group of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Information subject to a shared privilege or immunity or as to which the other Party Aptiv or any of its Subsidiaries has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party Delphi Technologies obtains knowledge that any of its its, or any member of its the Delphi Technologies Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party Delphi Technologies shall promptly notify the other Party provide written notice to Aptiv of the existence of the request (which notice shall be delivered to Aptiv no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party Aptiv a reasonable opportunity to review the information Information and to assert any rights it or they may have have, including under this Section 10.05 6.8 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(hf) The transfer Upon receipt by any member of all the Aptiv 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 Delphi Technologies or any member of the Delphi Technologies Group has the sole right hereunder to assert a privilege or immunity, or if Aptiv obtains knowledge that any of its, or any member of the Aptiv Group’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, Aptiv shall promptly provide written notice to Delphi Technologies of the existence of the request (which notice shall be delivered to Delphi Technologies no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide Delphi Technologies a reasonable opportunity to review the Information and to assert any rights it or they may have, including under this Section 6.8 or otherwise, to prevent the production or disclosure of such Privileged Information.
(g) Any furnishing of, or access to, Information pursuant to this Agreement is and the transfer of the Assets and retention of the Delphi Technologies Assets by Delphi Technologies are made and done in reliance on the agreement of IDT and CTM as the Parties set forth in Section 10.04 and this Section 10.05, 6.8 and in Section 6.9 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and 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. The Parties further agree that: (i) the exchange or retention by one Party to the other Party of any Privileged Information that should not have been transferred or retained, as the case may be, pursuant to the terms of this Article VI 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 retaining such Privileged Information shall promptly return or transfer, as the case may be, such Privileged Information to the Party who has the right to assert the privilege or immunity.
(h) In furtherance of, and without limitation to, the Parties’ agreement under this Section 6.8, Aptiv and Delphi Technologies shall, and shall cause their applicable Subsidiaries to, use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 3 contracts
Sources: Separation and Distribution Agreement (Delphi Technologies PLC), Separation and Distribution Agreement (Delphi Automotive PLC), Separation and Distribution Agreement (Delphi Technologies PLC)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group MSG Networks Group, and the CTM members of the Spinco Group, and that each of the members of the IDT Group MSG Networks Group, and each of the CTM members of the Spinco Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT MSG Networks shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessMSG Networks Business (other than with respect to Liabilities as to which Spinco is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT MSG Networks or CTMSpinco. IDT MSG Networks shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT MSG Networks Liabilities (including Retained Claims Liabilities), or other Liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT MSG Networks or CTM; andSpinco.
(iib) CTM Spinco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessSpinco Business (other than with respect to matters or claims that are Retained Claims Liabilities or other Liabilities as to which MSG Networks is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT MSG Networks or CTMSpinco. CTM Spinco shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Spinco Liabilities, or other liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMSpinco, whether or not the privileged information is in the possession of Spinco or under the control of IDT MSG Networks or CTM.Spinco
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilege, without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT MSG Networks and CTM Spinco, as set forth in Section 10.04 Sections 4.2, 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 4.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (Madison Square Garden Co), Distribution Agreement (MSG Spinco, Inc.), Distribution Agreement (MSG Spinco, Inc.)
Privileged 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 collective benefit of each of the members of the IDT iStar Group and the CTM SpinCo Group, and that each of the members of the IDT iStar Group and the CTM SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Distribution Effective Time Time, which services will be rendered solely for the benefit of IDT the iStar Group or CTMthe SpinCo Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT iStar shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT Excluded Business and not to the Transferred Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the iStar Group or CTMany member of the SpinCo Group. IDT iStar shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Excluded Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the iStar Group or CTM; andany member of the SpinCo Group;
(ii) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM Transferred Business and not to the Excluded Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the iStar Group. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, Assumed Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the iStar Group; and
(iii) if the Parties do not agree as to whether certain Information is Privileged Information, then such Information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information 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.
(c) The Subject to the remaining provisions of this Section 6.7, the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All 6.7(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party.
(d) If any dispute arises between the Parties or any members of their respective Group regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any member of their respective Group, which each Party agrees that it shall not be unreasonably withheld or delayed or as provided in subsections (ei) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon negotiate with the other Party requesting such consent. Each Party shall use its reasonable best efforts in good faith; (ii) endeavor to preserve minimize any privilege held prejudice to the rights of the other Party; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, each Party if specifically agrees that privilege is it shall not withhold its consent to the waiver of a shared privilege or has been allocated immunity for any purpose except in good faith to the other Party pursuant to Section 10.05(b)protect its own legitimate interests.
(e) In the event of any litigation adversarial Action or dispute between or among any of the PartiesiStar and SpinCo, or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Partypursuant to Section 6.7(c); provided, provided that such waiver of a shared privilege shall be effective only as to the use of information Information with respect to the litigation or dispute Action between the relevant 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 partiesany Third Party.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or immunity or as to which the other another Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information Privileged Information and to assert any rights it or they may have under this Section 10.05 6.7 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(g) In the event either Party inadvertently discloses any Privileged Information or inadvertently waives any privilege or immunity as to which the other Party has any interest, that Party shall immediately (i) advise the other Party of the inadvertent disclosure or waiver and (ii) take all reasonably available steps to claw back any waived or disclosed Information and restore the privilege or immunity.
(h) The Any furnishing of, or access or transfer of all of, any Information pursuant to this Agreement is made in reliance on the agreement of IDT iStar and CTM as SpinCo set forth in Section 10.04 and this Section 10.05, 6.7 and in Section 6.8 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement access to Information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and 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.
(i) In connection with any matter contemplated by Section 6.6 or this Section 6.7, the Parties agree to, and to cause the applicable members of their Group to, use commercially reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 3 contracts
Sources: Separation and Distribution Agreement (Istar Inc.), Separation and Distribution Agreement (Star Holdings), Merger Agreement (Istar Inc.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT SWS Group and each of the CTM members of the Westwood Group, and that each of the members of the IDT SWS Group and each of the CTM members of the Westwood Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be law. Except as otherwise specifically provided following in the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With Tax Separation Agreement with respect to such post-separation servicestax matters, to allocate the interests of each party in the information as to which any party is entitled to assert a privilege, the Parties parties agree as follows:
(ia) IDT SWS shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which that relates solely to the IDT business of SWS (exclusive of the Westwood Business), whether or not the privileged information is in the possession of or under the control of IDT SWS or CTMWestwood. IDT SWS shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT SWS Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by IDTSWS, whether or not the privileged information is in the possession of or under the control of IDT SWS or CTM; andWestwood.
(iib) CTM Westwood shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the Westwood Business, whether or not the privileged information is in the possession of or under the control of SWS or Westwood. Westwood shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM. CTM shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Westwood Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by CTMWestwood, whether or not the privileged information is in the possession of Westwood or under the control of IDT SWS or CTMWestwood.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.055.7, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 5.7(a) and (b). All privileges relating to any claimsAction, proceedings, litigation, disputes, disputes or other matters which that involve both IDT SWS and CTM Westwood in respect of which both Parties such parties retain any responsibility or Liability liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claim or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation Action or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party, to the extent necessary in connection with such Action or dispute, may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation such Action or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents officers or employees have directors has received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information (to the extent such information is available to such party) and to assert any rights it or they may have under this Section 10.05 5.7 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information records and other information pursuant to this Agreement is made in reliance on the agreement of IDT SWS and CTM Westwood, as set forth in Section 10.04 Sections 5.6 and this Section 10.055.7, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 5.1 and 5.2 hereof, the agreement to cooperate with respect to litigation pursuant to Section 5.3, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.5 hereof, and the transfer of privileged information between and among the parties and their respective 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.
(i) Any waiver of privilege granted pursuant to this Section 5.7 shall only be valid if given in writing and signed by the Chief Executive Officer, General Counsel or Board of Directors of the party granting such waiver.
Appears in 2 contracts
Sources: Distribution Agreement (Westwood Holdings Group Inc), Distribution Agreement (Westwood Holdings Group Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT RemainCo Group and the CTM members of the SpinCo Group, and that each of the members of the IDT RemainCo Group and each of the CTM members of the SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT The Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which Privileged Information that relates solely exclusively to the IDT BusinessCGRP Business (other than with respect to Liabilities as to which SpinCo is required to provide indemnification under ARTICLE V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. IDT The Company shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information any Privileged Information that relates solely exclusively to the subject matter of any claims constituting IDT RemainCo Liabilities, or other Liabilities as to which it is required to provide indemnification under ARTICLE V, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the RemainCo Group or CTM; andthe SpinCo Group.
(iib) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Privileged Information which relates solely exclusively to the CTM BusinessTherapeutics Business (other than with respect to matters or claims that are RemainCo Liabilities or other Liabilities as to which the Company is required to provide indemnification under ARTICLE V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information that any Privileged Information which relates solely to the subject matter of any claims constituting CTM SpinCo Liabilities, or other Liabilities as to which it is required to provide indemnification under ARTICLE V, now pending or which may be asserted in the future, in any lawsuits or other proceedings Proceedings initiated against or by CTMSpinCo, whether or not the privileged information Privileged Information is in the possession of SpinCo or under the control of IDT any member of the RemainCo Group or CTMthe SpinCo Group.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.056.6, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b6.6(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could may be asserted under any applicable Law, and in which any the other Party has a shared privilege, without the written consent of the other Party, which shall such consent not to be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third Party Claims or as provided in subsections (e) or (fSection 6.6(e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, or any members of their the respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information Privileged Information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their the respective Groups, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third Party Claims.
(f) If a dispute arises between or among the Parties or any members of their Group the respective Groups regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall (i) negotiate in good faith, shall (ii) endeavor to minimize any prejudice to the rights of the other Party, and shall (iii) not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group the respective Groups of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests which arguably calls for request that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) business days following the receipt of such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 6.6 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement agreements of IDT the Company and CTM SpinCo, as set forth in Section 10.04 6.2, Section 6.3, Section 6.4, Section 6.5 and this Section 10.056.6, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Section 6.1, Section 6.2, Section 6.3 and Section 6.4 hereof, the agreement to provide witnesses and individuals pursuant to Section 6.2 and Section 6.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 hereof, and the transfer of Privileged Information between and among the Parties and their respective Subsidiaries and Representatives 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.
(i) Parent acknowledges that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ Lord LLP and ▇▇▇▇▇▇ and Calder (“Prior Company Counsel”) have, on or prior to the Effective Time, represented one or more of the Parties and their Subsidiaries and other Affiliates, and their respective officers, employees and directors (each such Person, other than the RemainCo Group, a “Designated Person”) in one or more matters relating to this Agreement (including any matter that may be related to a litigation, claim or dispute arising under or related to this Agreement) (each, an “Existing Representation”), and that, in the event of any post-Closing matters (x) relating to this Agreement (including any matter that may be related to a litigation, claim or dispute arising under or related to this Agreement) and (y) in which Parent or any of its Affiliates (including the RemainCo Group), on the one hand, and one or more Designated Persons, on the other hand, are or may be adverse to each other (each, a “Post-Closing Matter”), the Designated Persons reasonably anticipate that Prior Company Counsel will represent them in connection with such matters. Accordingly, each of Parent and the Company hereby (i) waives and shall not assert, and agrees after the Effective Time to cause its Affiliates to waive and to not assert, any conflict of interest arising out of or relating to the representation by one or more Prior Company Counsel of one or more Designated Persons in connection with one or more Post-Closing Matters (the “Post-Closing Representation”) and (ii) agrees that, in the event that a Post-Closing Matter arises, Prior Company Counsel may represent one or more Designated Persons in such Post-Closing Matter even though the interests of such Person(s) may be directly adverse to Parent or any of its Affiliates (including the RemainCo Group), and even though Prior Company Counsel may (A) have represented the RemainCo Group in a matter substantially related to such dispute or (B) be currently representing the RemainCo Group. Without limiting the foregoing, each of Parent and the Company (on behalf of itself and its Affiliates) consents to the disclosure by Prior Company Counsel, in connection with one or more Post-Closing Representations, to the Designated Persons of any information substantially related to such Post-Closing Representations learned by Prior Company Counsel in the course of one or more Existing Representations, whether or not such information is subject to the attorney-client privilege of the RemainCo Group or Prior Company Counsel’s duty of confidentiality as to the RemainCo Group and whether or not such disclosure is made before or after the Effective Time.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Biohaven Research Ltd.), Separation and Distribution Agreement (Biohaven Research Ltd.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will shall be provided prior to the Effective Time have been and will shall be rendered for the collective benefit of each of the members of the IDT Group Parties and the CTM Grouptheir respective Subsidiaries, and that each of the members of the IDT Group Party and the CTM Group its respective Subsidiaries should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which and immunities that may be asserted under applicable LawLaw in connection therewith.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT CHS shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely primarily to the IDT CHS Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT CHS or CTMa CHS Subsidiary or QHC or a QHC Subsidiary. IDT CHS shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely primarily to the subject matter of any claims constituting IDT Liabilities, CHS Liabilities resulting from any Proceedings that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT CHS or CTM; anda CHS Subsidiary or QHC or a QHC Subsidiary.
(ii) CTM QHC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely primarily to the CTM QHC Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT QHC or CTMa QHC Subsidiary or CHS or a CHS Subsidiary. CTM QHC shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely primarily to the subject matter of any claims constituting CTM Liabilities, QHC Liabilities resulting from any Proceedings that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT QHC or CTMa QHC Subsidiary or CHS or a CHS Subsidiary.
(iii) If CHS and QHC do not agree as to whether certain Information is Privileged Information, then the Information shall be treated as Privileged Information, and the Party who believes such Information is Privileged Information 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 VIII to resolve any disputes as to whether any Information relates primarily to the CHS Business, primarily to the QHC Business, or to both the CHS Business and the QHC Business.
(c) The Subject to Sections 7.07(d) and 7.07(e), the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All 7.07(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Proceedings or other matters which that involve both IDT Parties (or one or more of their respective Subsidiaries) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections .
(ed) or (f) below. Consent shall be in writingIf any Dispute arises between CHS and QHC, or any of their respective Subsidiaries, regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or their respective Subsidiaries, each Party agrees that it shall be deemed to be granted unless written objection is made within twenty (20i) days after notice upon negotiate with the other Party requesting such consent. Each Party shall use its reasonable best efforts in good faith; (ii) endeavor to preserve minimize any privilege held prejudice to the rights of the other Party; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, each Party if specifically agrees that privilege is it shall not withhold its consent to the waiver of a shared privilege or has been allocated immunity for any purpose except to the other Party pursuant to Section 10.05(b)protect its own legitimate interests.
(e) In the event of any litigation adversarial Proceeding or dispute Dispute between or among any of the PartiesCHS and QHC, or any members of their respective Groups, either such Party may waive a privilege in which CHS or QHC, or any member of their respective Groups, intend to make use of any Privileged Information with respect to which the other Party or member of such other Party’s Group has a shared privilege, without obtaining each Party agrees that the consent Party making use of such Privileged Information shall do so in a manner reasonably calculated to preserve and not waive any privilege held by the other Party or member of such other Party; provided, that such waiver of a shared privilege shall be effective only as to the use of information ’s Group with respect to the litigation such Privileged Information, including but not limited to filing or dispute between the relevant Parties and/or the applicable members of their respective Groupssubmitting such Privileged Information to a court or arbitrator under seal, and the Parties shall not operate as a take all reasonable efforts to preserve the privilege and to protect against any waiver of the shared privilege with respect to third partiesany Third Party.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for (or of written notice that it will or has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or immunity or as to which the other another Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge or becomes aware that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for (or have received written notice that they will or have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) business days following the receipt of (or of written notice that it will or has received) any such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information Privileged Information and to assert any rights it or they may have have, under this Section 10.05 7.07 or otherwise otherwise, to prevent the production or disclosure of such privileged information.Privileged Information; provided, that if such Party is prohibited by applicable Law from disclosing the existence of the request, such Party shall provide written notice of such related information for which disclosure is not prohibited by applicable Law and use commercially reasonable efforts to inform the other Party of any related information such Party determines, in its discretion, 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, under this Section 7.07 or otherwise, to prevent the production or disclosure of such Privileged Information
(hg) The transfer of all Any furnishing of, or access to, Information pursuant to this Agreement is made in reliance on the agreement of IDT CHS and CTM as QHC set forth in Section 10.04 and this Section 10.05, 7.07 and in Section 7.08 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and 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. The Parties further agree that (i) the exchange by one Party to the other Party of any Privileged Information that should not have been transferred pursuant to the terms of this Article VII 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.
(h) In furtherance of, and without limitation to, the Parties’ agreement under this Section 7.07, CHS and QHC shall, and shall cause their applicable Subsidiaries to, use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Quorum Health Corp), Separation and Distribution Agreement (Quorum Health Corp)
Privileged Matters. (a) The Parties Park Place and Hilton recognize that certain legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of both the members of the IDT Retained Business Group and the CTM Group, Gaming Group and that each of both the members of the IDT Retained Business Group and the CTM Gaming Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following Privileges. To allocate the Effective Time which will be rendered solely for interests of each party in the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(ia) IDT Hilton shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the IDT BusinessRetained Business Group, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Hilton or CTMPark Place. IDT Hilton shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information that relates solely to the subject matter of any claims constituting IDT Retained Business Group Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTHilton or a Retained Business Subsidiary, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Hilton or CTM; andPark Place.
(iib) CTM Park Place shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the CTM BusinessGaming Group, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Hilton or CTMPark Place. CTM Park Place shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information that Privileged Information which relates solely to the subject matter of any claims constituting CTM Gaming Group Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMPark Place or a Gaming Subsidiary, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Hilton or CTMPark Place.
(c) The Parties Park Place and Hilton agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.07, with respect to all privileges Privileges not allocated pursuant to the terms of Section 10.05(bSections 7.07(a) and (b). All privileges Privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT Park Place and CTM Hilton, or in respect of which both Parties Park Place and Hilton retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among themPrivilege.
(d) No Party party may waive any privilege Privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party has a shared privilegePrivilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after written notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any a member of the Parties, or any members Retained Business Group and a member of their respective Groupsthe Gaming Group, either such Party party may waive a privilege Privilege in which the other Party or member of such other Party’s Group party has a shared privilegePrivilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege Privilege shall be effective only as to the use of information Information with respect to the litigation or dispute between the relevant Parties and/or Retained Business Group and the applicable members of their respective GroupsGaming Group, and shall not operate as a waiver of the shared privilege Privilege with respect to third third-parties.
(f) If a dispute arises between the Parties or members of their Group parties regarding whether a privilege Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege Privilege or as to which the other Party party has the sole right hereunder to assert a privilegePrivilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged informationPrivileged Information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 7.07 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all the Gaming Group Books and Records and the Retained Business Group Books and Records and other Information pursuant to this Agreement between Hilton and its Subsidiaries and Park Place and its Subsidiaries is made in reliance on the agreement of IDT Park Place and CTM Hilton, as set forth in Section 10.04 Sections 7.06 and this Section 10.057.07, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesPrivileges. Nothing provided for herein or in any Ancillary The access to Information being granted pursuant to Sections 7.01 and 7.02 hereof, the agreement to provide witnesses and individuals pursuant to Section 7.03 hereof and the transfer of Privileged Information between Hilton and its Subsidiaries and Park Place and its Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any privilege Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 2 contracts
Sources: Distribution Agreement (Hilton Hotels Corp), Distribution Agreement (Park Place Entertainment Corp)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT RemainCo Group and the CTM members of the SpinCo Group, and that each of the members of the IDT RemainCo Group and each of the CTM members of the SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT The Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which Privileged Information that relates solely exclusively to the IDT BusinessRemainCo Business (other than with respect to Liabilities as to which SpinCo is required to provide indemnification under Article V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. IDT The Company shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information any Privileged Information that relates solely exclusively to the subject matter of any claims constituting IDT RemainCo Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the RemainCo Group or CTM; andthe SpinCo Group.
(iib) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Privileged Information which relates solely exclusively to the CTM BusinessSpinCo Business (other than with respect to matters or claims that are RemainCo Liabilities or other Liabilities as to which the Company is required to provide indemnification under Article V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information that any Privileged Information which relates solely exclusively to the subject matter of any claims constituting CTM SpinCo Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V, now pending or which may be asserted in the future, in any lawsuits or other proceedings Proceedings initiated against or by CTMSpinCo, whether or not the privileged information Privileged Information is in the possession of SpinCo or under the control of IDT any member of the RemainCo Group or CTMthe SpinCo Group.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.056.6, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b6.6(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could may be asserted under any applicable Law, and in which any the other Party has a shared privilege, without the written consent of the other Party, which shall such consent not to be unreasonably withheld withheld, conditioned or delayed delayed, except to the extent reasonably required in connection with any Third Party Claims or as provided in subsections (e) or (fSection 6.6(e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, or any members of their the respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information Privileged Information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their the respective Groups, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third Party Claims.
(f) If a dispute arises between or among the Parties or any members of their Group the respective Groups regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall (i) negotiate in good faith, shall (ii) endeavor to minimize any prejudice to the rights of the other Party, and shall (iii) not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group the respective Groups of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests which arguably calls for request that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) Business Days following the receipt of such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 6.6 or otherwise to prevent the production or disclosure of such Privileged Information. For the avoidance of doubt, nothing in this Section 6.6 shall require either Party to disclose or seek consent to disclose any privileged informationcommunications or attorney work product created after giving effect to the Distribution that relate solely to such Party’s business, consistent with Section 6.2.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement agreements of IDT the Company and CTM SpinCo, as set forth in Section 10.04 6.2, Section 6.3, Section 6.4, Section 6.5 and this Section 10.056.6, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Section 6.1, Section 6.2, Section 6.3 and Section 6.4 hereof, the agreement to provide witnesses and individuals pursuant to Section 6.2 and Section 6.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 hereof, and the transfer of Privileged Information between and among the Parties and their respective Subsidiaries and Representatives 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 and Distribution Agreement (Atrium Therapeutics, Inc.), Separation and Distribution Agreement (Avidity Biosciences, Inc.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT CPC Group and of the CTM Corn Products Group, and that each of the members of the IDT CPC Group and of the CTM Corn Products Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following law. To allocate the Effective Time interests of each party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any party is entitled to such post-separation servicesassert a privilege, the Parties parties agree as follows:
(ia) IDT CPC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT CPC Business, whether or not the privileged information is in the possession of or under the control of IDT CPC or CTMCorn Products. IDT CPC shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT CPC Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTCPC, whether or not the privileged information is in the possession of or under the control of IDT CPC or CTM; andCorn Products.
(iib) CTM Corn Products shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Corn Products Business, whether or not the privileged information is in the possession of or under the control of IDT Corn Products or CTMCPC. CTM Corn Products shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Corn Products Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMCorn Products, whether or not the privileged information is in the possession of or under the control of IDT Corn Products or CTMCPC.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waiveassert, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b); provided, that the written consent of both parties is required to waive any privilege deemed to be a shared privilege hereunder. All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT CPC and CTM Corn Products in respect of which both Parties parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon from the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute exclusively between or among the parties hereto, any party and a Subsidiary of the Partiesother party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of the other party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have has received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party or parties of the existence of the request and shall provide the other Party party or parties a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT CPC and CTM Corn Products, as set forth in Section 10.04 Sections 4.4 and this Section 10.054.5, to maintain the confidentiality of confidential or privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1 and 4.2 hereof, the agreement to provide witnesses and individuals pursuant to Sections 1.8 and 3.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.3 hereof, and the transfer of privileged information between and among the parties and their respective 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.
Appears in 2 contracts
Sources: Distribution Agreement (Corn Products International Inc), Distribution Agreement (Corn Products International Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Ventas Group and the CTM SpinCo Group, and that each of the members of the IDT Ventas Group and the CTM SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties parties recognize that legal and other professional services will be provided following the Effective Time Time, which services will be rendered solely for the benefit of IDT the Ventas Group or CTMthe SpinCo Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT Ventas shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT Ventas Business and not to the SpinCo Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Ventas Group or CTMany member of the SpinCo Group. IDT Ventas shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Ventas Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Ventas Group or CTM; andany member of the SpinCo Group;
(ii) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM SpinCo Business and not to the Ventas Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Ventas Group. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT or CTM.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its the SpinCo Group of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its the Ventas Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 or otherwise to prevent the production or disclosure of such privileged information.; and
(hiii) The transfer If the Parties do not agree as to whether certain information is Privileged Information, then such information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information shall be entitled to control the assertion or waiver of all Information pursuant to this Agreement is made privileges and immunities in reliance on connection with any such information unless the agreement of IDT and CTM as Parties otherwise agree. The Parties shall use the procedures set forth in Section 10.04 Article VII to resolve any disputes as to whether any information relates solely to the Ventas Business, solely to the SpinCo Business, or to both the Ventas Business and this Section 10.05, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwiseSpinCo Business.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Care Capital Properties, Inc.), Separation and Distribution Agreement (Care Capital Properties, Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT SEACOR Group and the CTM members of the Era Group, and that each of the members of the IDT Group SEACOR Group, and each of the CTM members of the Era Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT SEACOR shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessSEACOR Business (other than with respect to Liabilities as to which Era is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT SEACOR, Era or CTMany member of either Party’s Group. IDT SEACOR shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT SEACOR Liabilities, or other Liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT SEACOR, Era or CTM; andany member of either Party’s Group.
(iib) CTM Era shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessEra Business (other than with respect to Liabilities as to which SEACOR is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT SEACOR, Era or CTMany member of either Party’s Group. CTM Era shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Era Liabilities, or other liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMEra, whether or not the privileged information is in the possession of or under the control of IDT SEACOR, Era or CTMany member of either Party’s Group.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT SEACOR and CTM Era, as set forth in Section 10.04 Sections 4.2, 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 4.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (Era Group Inc.), Distribution Agreement (Era Group Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of Capital Southwest, CSWI and the CSWI Companies, and that Capital Southwest, CSWI and each of the members of the IDT Group and the CTM Group, and that each of the members of the IDT Group and the CTM Group CSWI Companies should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT Capital Southwest shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessCapital Southwest Business (including with respect to Liabilities as to which CSWI is required to provide indemnification under Article IV), whether or not the privileged information is in the possession of or under the control of IDT Capital Southwest or CTMCSWI or the CSWI Companies. IDT Capital Southwest shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Capital Southwest Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTCapital Southwest or any of its Subsidiaries, whether or not the privileged information is in the possession of or under the control of IDT Capital Southwest or CTM; andCSWI or the CSWI Companies.
(iib) CTM CSWI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessCSWI Businesses (including with respect to Liabilities as to which Capital Southwest is required to provide indemnification under Article IV), whether or not the privileged information is in the possession of or under the control of IDT Capital Southwest or CTMCSWI or the CSWI Companies. CTM CSWI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM CSWI Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMCSWI or the CSWI Companies, whether or not the privileged information is in the possession of CSWI or the CSWI Companies or under the control of IDT Capital Southwest or CTMCSWI or the CSWI Companies.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.055.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 5.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Subject to Sections 5.5(a) and (b), no Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed or delayed, except as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 5.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Capital Southwest and CTM CSWI, as set forth in Section 10.04 Sections 5.4 and this Section 10.055.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 5.1, 5.2 and 5.3, the agreement to provide witnesses and individuals pursuant to Section 5.3, the furnishing of notices and documents and other cooperative efforts contemplated by Section 5.3, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (Capital Southwest Corp), Distribution Agreement (CSW Industrials, Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of Capital Southwest, CSWI and the CSWI Companies, and that Capital Southwest, CSWI and each of the members of the IDT Group and the CTM Group, and that each of the members of the IDT Group and the CTM Group CSWI Companies should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT Capital Southwest shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessCapital Southwest Business (including with respect to Liabilities as to which CSWI is required to provide indemnification under Article IV), whether or not the privileged information is in the possession of or under the control of IDT Capital Southwest or CTMCSWI or the CSWI Companies. IDT Capital Southwest shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Capital Southwest Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT Capital Southwest or CTM; andCSWI or the CSWI Companies.
(iib) CTM CSWI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessCSWI Businesses (including with respect to Liabilities as to which Capital Southwest is required to provide indemnification under Article IV), whether or not the privileged information is in the possession of or under the control of IDT Capital Southwest or CTMCSWI or the CSWI Companies. CTM CSWI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM CSWI Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMCSWI or the CSWI Companies, whether or not the privileged information is in the possession of CSWI or the CSWI Companies or under the control of IDT Capital Southwest or CTMCSWI or the CSWI Companies.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.055.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 5.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Subject to Sections 5.5(a) and (b), no Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed or delayed, except as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 5.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Capital Southwest and CTM CSWI, as set forth in Section 10.04 Sections 5.4 and this Section 10.055.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 5.1, 5.2 and 5.3, the agreement to provide witnesses and individuals pursuant to Section 5.3, the furnishing of notices and documents and other cooperative efforts contemplated by Section 5.3, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (CSW Industrials, Inc.), Distribution Agreement (CSW Industrials, Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group and the CTM Group▇▇▇▇▇▇, and that each of the members of the IDT Group and the CTM Group ▇▇▇▇▇▇ should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM▇▇▇▇▇▇, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM▇▇▇▇▇▇. IDT shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM▇▇▇▇▇▇; and
(ii) CTM ▇▇▇▇▇▇ shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM ▇▇▇▇▇▇ Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM▇▇▇▇▇▇. CTM ▇▇▇▇▇▇ shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM ▇▇▇▇▇▇ Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM▇▇▇▇▇▇, whether or not the privileged information is in the possession of or under the control of IDT or CTM▇▇▇▇▇▇.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM ▇▇▇▇▇▇ in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s Group (if applicable) 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 information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsGroup (if applicable)s, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties or members of their Group (if applicable) regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group (if applicable) of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its GroupGroup (if applicable)’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM ▇▇▇▇▇▇ as set forth in Section 10.04 and this Section 10.05, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall 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 and Distribution Agreement (Rafael Holdings, Inc.), Separation and Distribution Agreement (Rafael Holdings, Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of CTI, and the members of the Comverse Group, and that CTI, and each of the members of the IDT Group and the CTM Group, and that each of the members of the IDT Group and the CTM Comverse Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT CTI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessCTI Business (including with respect to Liabilities as to which Comverse is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT CTI or CTMComverse. IDT CTI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT CTI Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT CTI or CTM; andComverse.
(iib) CTM Comverse shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessComverse Business (including with respect to Liabilities as to which CTI is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT CTI or CTMComverse. CTM Comverse shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Comverse Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMComverse, whether or not the privileged information is in the possession of Comverse or under the control of IDT CTI or CTMComverse.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Subject to Sections 4.5(a) and (b), no Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed or delayed, except as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT CTI and CTM Comverse, as set forth in Section 10.04 Sections 4.2, 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 4.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (Comverse, Inc.), Distribution Agreement (Comverse, Inc.)
Privileged Matters. (a) The Parties Franchising and Choice recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of both the members of the IDT Real Estate Group and the CTM Group, Franchising Group and that each of both the members of the IDT Real Estate Group and the CTM Franchising Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following Privileges. To allocate the Effective Time which will be rendered solely for interests of each party in the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(ia) IDT Choice shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the IDT BusinessReal Estate Group, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Choice or CTMFranchising. IDT Choice shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information that relates solely to the subject matter of any claims constituting IDT Real Estate Group Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTChoice, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Choice or CTM; andFranchising.
(iib) CTM Franchising shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the CTM BusinessFranchising Group, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Choice or CTMFranchising. CTM Franchising shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information that Privileged Information which relates solely to the subject matter of any claims constituting CTM Franchising Group Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMFranchising, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Choice or CTMFranchising.
(c) The Parties Franchising and Choice agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.07, with respect to all privileges Privileges not allocated pursuant to the terms of Section 10.05(bSections 7.07(a) and (b). All privileges Privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT Franchising and CTM Choice or in respect of which both Parties Franchising and Choice retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among themPrivilege .
(d) No Party party may waive any privilege Privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party has a shared privilegePrivilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after written notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any a member of the Parties, or any members Real Estate Group and a member of their respective Groupsthe Franchising Group, either such Party party may waive a privilege Privilege in which the other Party or member of such other Party’s Group party has a shared privilegePrivilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege Privilege shall be effective only as to the use of information Information with respect to the litigation or dispute between the relevant Parties and/or Real Estate Group and the applicable members of their respective GroupsFranchising Group, and shall not operate as a waiver of the shared privilege Privilege with respect to third third- parties.
(f) If a dispute arises between the Parties or members of their Group parties regarding whether a privilege Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege Privilege or as to which the other Party party has the sole right hereunder to assert a privilegePrivilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged informationPrivileged Information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 7.07 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all the Franchising Books and Records and the Choice Books and Records and other Information pursuant to this Agreement between Choice and its Subsidiaries and Franchising and its Subsidiaries is made in reliance on the agreement of IDT Franchising and CTM Choice, as set forth in Section 10.04 Sections 7.06 and this Section 10.057.07, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesPrivileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.01 and 7.02 hereof, the agreement to provide witnesses and individuals pursuant to Section 7.03 hereof and the transfer of Privileged Information between Choice and its Subsidiaries and Franchising and its Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any privilege Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 2 contracts
Sources: Distribution Agreement (Choice Hotels International Inc), Distribution Agreement (Choice Hotels International Inc/)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group PDL Entities and the CTM GroupLENSAR Entities, and that each of the members PDL Entities, and each of the IDT Group and the CTM Group LENSAR Entities should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT PDL shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessPDL Business (other than with respect to Liabilities as to which LENSAR is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT PDL, LENSAR or CTMany other Entity. IDT PDL shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT PDL Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT PDL, LENSAR or CTM; andany other Entity.
(iib) CTM LENSAR shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessLENSAR Business (other than with respect to Liabilities as to which PDL is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT PDL, LENSAR or CTMany other Entity. CTM LENSAR shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM LENSAR Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMLENSAR, whether or not the privileged information is in the possession of or under the control of IDT PDL, LENSAR or CTMany other Entity.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 7.5(a) and 7.5(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 7.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT PDL and CTM LENSAR, as set forth in Section 10.04 Sections 7.2, 7.4, and this Section 10.057.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.1, 7.2, and 7.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 7.2 and 7.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 7.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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 and Distribution Agreement (LENSAR, Inc.), Separation and Distribution Agreement (LENSAR, Inc.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time Closing Date have been and will be rendered for the collective benefit of each of the members of the IDT Group Radiant and the CTM GroupEnterprise, and that each of the members of the IDT Radiant Group and the CTM Group Enterprise should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be . Except as otherwise specifically provided following in the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With Tax Disaffiliation Agreement with respect to such post-separation servicestax matters, to allocate the interests of each party in the information as to which any party is entitled to assert a privilege, the Parties parties agree as follows:
(ia) IDT Radiant shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Radiant Business, whether or not the privileged information is in the possession of or under the control of IDT Radiant or CTMEnterprise. IDT Radiant shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Excluded Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by IDTRadiant, whether or not the privileged information is in the possession of or under the control of IDT Radiant or CTM; andEnterprise.
(iib) CTM Enterprise shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Enterprise Business, whether or not the privileged information is in the possession of or under the control of IDT Radiant or CTMEnterprise. CTM Enterprise shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Enterprise Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by CTMEnterprise, whether or not the privileged information is in the possession of Enterprise or under the control of IDT Radiant or CTMEnterprise.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and 4.5(b). All privileges relating to any claimsAction, proceedings, litigation, disputes, disputes or other matters which involve both IDT Radiant and CTM Enterprise in respect of which both Parties such parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Law, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Action with Third Parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation Action or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party, to the extent necessary in connection with such Action or dispute, may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation such Action or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesThird Parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees have Representatives has received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information (to the extent such information is available to such party) and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information and other information pursuant to this Agreement is made in reliance on the agreement of IDT Radiant and CTM Enterprise, as set forth in Section 10.04 Sections 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1 and 4.2 hereof, the agreement to provide witnesses and individuals pursuant to Sections 2.6 and 3.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.4 hereof, and the transfer of privileged information between and among the parties and their respective 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.
Appears in 2 contracts
Sources: Separation Agreement (Radiant Systems Inc), Separation Agreement (Radiant Systems Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT CES Group and the CTM SpinCo Group, and that each of the members of the IDT CES Group and the CTM SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time Time, which services will be rendered solely for the benefit of IDT the CES Group or CTMthe SpinCo Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT shall VSI will be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT CES Business and not to the SpinCo Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the CES Group or CTMany member of the SpinCo Group. IDT shall VSI will also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, CES Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the CES Group or CTMany member of the SpinCo Group; and
(ii) CTM shall SpinCo will be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM SpinCo Business and not to the CES Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the CES Group. CTM shall SpinCo will also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the CES Group.
(iii) If the Parties do not agree as to whether certain information is Privileged Information, then such information will be treated as Privileged Information, and the Party that believes that such information is Privileged Information will be entitled to control the assertion or waiver of all privileges and immunities in connection with any such information until such time as it is determined by a court of competent jurisdiction that such information is not Privileged Information, unless the Parties otherwise agree. The Parties will use the procedures set forth in Article VII to resolve any Disputes as to whether any information relates solely to the CES Business, solely to the SpinCo Business, or to both the CES Business and the SpinCo Business.
(c) The Subject to the remaining provisions of this Section 6.7, the Parties agree that they shall will have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All 6.7(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT VSI and CTM SpinCo (or one or more members of their respective Groups) and in respect of which both Parties retain any responsibility or Liability VSI and SpinCo have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among themor immunity may be waived by either Party (or another member of its Group) without the written consent of the other Party.
(d) No Party may waive If any privilege which could be asserted under any applicable Law, and in which Dispute arises between the Parties or any other members of their respective Groups regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party has a shared privilegeor any other member of their respective Groups, without each Party agrees that it will (i) negotiate with the consent other Party in good faith; (ii) endeavor to minimize any prejudice to the rights of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections Party (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon and the other Party requesting such consent. Each Party shall use its reasonable best efforts members of the Group); and (iii) not unreasonably withhold consent to preserve any privilege held request for waiver by the other Party. Further, each Party if specifically agrees that privilege is it will not withhold its consent to the waiver of a shared privilege or has been allocated immunity for any purpose except in good faith to the other Party pursuant to Section 10.05(b)protect its own legitimate interests.
(e) In Subject to Section 6.9, in the event of any litigation adversarial Action or dispute Dispute between or among any of the PartiesVSI and SpinCo, or any other members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Partypursuant to Section 6.8(c); provided, provided that such waiver of a shared privilege shall will be effective only as to the use of information with respect to the litigation Action or dispute Dispute between the relevant Parties and/or or the applicable members of their respective Groups, and shall will not operate as a waiver of the shared privilege with respect to third partiesany Third Party.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party Party, or by any other member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge that any of its its, or any other member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall will promptly notify the other Party of the existence of the request (which notice will be delivered to such other Party no later than five business days following the receipt of any such subpoena, discovery or other request) and shall will provide the other Party a reasonable opportunity to review the information Privileged Information and to assert any rights it or they may have under this Section 10.05 6.7 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(hg) The Any furnishing of, or access or transfer of all Information of, any information pursuant to this Agreement is made in reliance on the agreement agreements of IDT VSI and CTM as SpinCo set forth in Section 10.04 and this Section 10.05, 6.7 and in Section 6.9 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement shall access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and members of their respective Groups pursuant to this Agreement, will not be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwise.
(h) The Parties acknowledge that members of the CES Group and members of the SpinCo Group may have or develop interests adverse to each other following the Effective Time. Each Party hereby waives (i) any and all current and future objections to any outside counsel that represented VSI or any of its Affiliates prior to the Effective Time from continuing to represent or in the future representing their respective clients or either Party (or any members of such Party’s Group) in any matter, including matters in which members of the CES Group and members of the SpinCo Group are adverse and Disputes relating to this Agreement or any Ancillary Agreement and (ii) all current and future rights to seek disqualification, whether based on the possession or disclosure of confidential information or otherwise, of any such outside counsel from any representation of their respective clients or either Party (or any members of such Party’s Group) in any matter, including matters in which members of the CES Group and members of the SpinCo Group are adverse and Disputes relating to this Agreement or any Ancillary Agreement.
(i) In connection with any matter contemplated by Section 6.6 or this Section 6.7, the Parties agree to, and to cause the other members of their respective Groups to, use commercially reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Cognyte Software Ltd.), Separation and Distribution Agreement (Cognyte Software Ltd.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group Parent Group, and each of the CTM members of the SpinCo Group, and that each of the members of the IDT Group Parent Group, and each of the CTM Group members of the SpinCo Group, should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be . Except as otherwise specifically provided following in the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With Tax Disaffiliation Agreement with respect to such post-separation servicestax matters, to allocate the interests of each party in the information as to which any party is entitled to assert a privilege, the Parties parties agree as follows:
(ia) IDT Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Parent Business, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinCo. IDT Parent shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Parent Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by IDTParent, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTM; andSpinCo.
(iib) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM SpinCo Business, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM SpinCo Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by CTMSpinCo, whether or not the privileged information is in the possession of SpinCo or under the control of IDT Parent or CTMSpinCo.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claimsAction, proceedings, litigation, disputes, disputes or other matters which involve both IDT Parent and CTM SpinCo in respect of which both Parties such parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Law, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Action with Third Parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation Action or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party, to the extent necessary in connection with such Action or dispute, may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation such Action or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesThird Parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have Representatives has received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information (to the extent such information is available to such party) and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Parent and CTM SpinCo, as set forth in Section 10.04 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1 and 4.2 hereof, the agreement to provide witnesses and individuals pursuant to Sections 2.7 and 3.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.3 hereof, and the transfer of privileged information between and among the parties and their respective 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.
Appears in 2 contracts
Sources: Distribution Agreement (First National Bankshares of Florida Inc), Distribution Agreement (FNB Corp/Fl/)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members Synovus, CB&T and their respective Subsidiaries, and each of the IDT Group TSYS and the CTM Groupits Subsidiaries, and that each of the members Synovus, CB&T and their respective Subsidiaries, and each of the IDT Group TSYS and the CTM Group its Subsidiaries should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be . Except as otherwise specifically provided following in the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With Tax Sharing Agreement with respect to such post-separation servicestax matters or any other agreement between the Parties, to allocate the interests of each Party in the information as to which any Party is entitled to assert a privilege, the Parties agree as follows:
(ia) IDT Synovus shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Synovus Business, whether or not the privileged information is in the possession of or under the control of IDT Synovus or CTM. IDT shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM; andTSYS.
(iib) CTM TSYS shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM TSYS Business, whether or not the privileged information is in the possession of or under the control of IDT Synovus, CB&T or CTM. CTM shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information is in the possession of or under the control of IDT or CTMTSYS.
(c) The Parties Synovus and TSYS (collectively, the “Privileged Parties”) agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.055.9, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 5.9(a) and (b). All privileges relating to any claimsAction, proceedings, litigation, disputes, disputes or other matters which involve both IDT Synovus and CTM TSYS in respect of which both such Privileged Parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among between them.
(d) No Privileged Party may waive any privilege which could be asserted under any applicable Law, and in which any other Privileged Party has a shared privilege, without the consent of the other Privileged Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Action with Third Parties or as provided in subsections (e) or (f) belowSection 5.9(e). Consent Request for consent shall be in writing, or writing and any consents shall be deemed to be granted unless written objection is made within twenty (20) days after timely notice upon the other Privileged Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In Except as otherwise provided in any other agreement between the Parties, in the event of any litigation Action or dispute between or among any of the Privileged Parties, any Privileged Party and a Subsidiary of another Privileged Party, or any members a Subsidiary of their respective Groupsa Privileged Party and a Subsidiary of another Privileged Party, either such Party Privileged Party, to the extent necessary in connection with such Action or dispute, may waive a privilege in which the other Privileged Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Privileged Party; provided, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation such Action or dispute between the relevant Privileged Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesThird Parties.
(f) If a dispute arises between or among the Privileged Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Privileged Party, each Privileged Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other PartyPrivileged Parties, and shall not unreasonably withhold consent to any request for waiver by the other another Privileged Party. Each Privileged Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Privileged Party or by any member of its Group Subsidiary thereof of any order, subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Privileged Party has the sole right hereunder to assert a privilege, or if either Privileged Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees have Representatives has received any order, subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Privileged Party shall promptly notify the other Privileged Party of the existence of the request and shall provide the other Privileged Party a reasonable opportunity to review the information (to the extent such information is available to such Privileged Party) and to assert any rights it or they may have under this Section 10.05 5.9 or otherwise to prevent the production or disclosure of such privileged information; provided, however, nothing under this Section 5.9(g) shall prevent the Privileged Party that provided such notice from complying with such request.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT Synovus and CTM TSYS, as set forth in Section 10.04 Sections 5.2 and this Section 10.055.9 hereof and the Confidential Disclosure Agreement, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein The access to Information being granted pursuant to Section 5.2, the agreement to provide witnesses and individuals pursuant to Section 5.2(f) and the transfer of privileged information between and among the Parties and their respective Subsidiaries pursuant to this Agreement or in any Ancillary 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: Agreement and Plan of Distribution (Synovus Financial Corp), Agreement and Plan of Distribution (Total System Services Inc)
Privileged Matters. (a) The Parties recognize that the legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group and the CTM GroupParties, and that each of the members of the IDT Group and the CTM Group Party should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which and immunities that may be asserted under applicable LawLaw in connection therewith.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT BioVie shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT BioVie Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of BioVie or CTMSpinCo. IDT BioVie shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, BioVie Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT BioVie or CTM; andSpinCo.
(ii) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM SpinCo Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT BioVie or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT BioVie or CTMSpinCo.
(iii) If BioVie and SpinCo do not agree as to whether certain information is Privileged Information, then the information shall be treated as Privileged Information, and the Party who believes such information is Privileged Information 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 VIII to resolve any disputes as to whether any information relates solely to the BioVie Business, solely to the SpinCo Business, or to both the BioVie Business and the SpinCo Business.
(c) The Subject to Section 7.9(d) and Section 7.9(e), the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All 7.9(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(fd) If a any dispute arises between the Parties or members of their Group BioVie and SpinCo regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either Party, each Party agrees that it 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 shall (iii) not unreasonably withhold consent to any request for waiver by the other Party. Each Further, each Party specifically agrees that it will shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests.
(ge) Upon receipt by either Party or by any member of its Group SpinCo of any subpoena, discovery or other request which arguably calls for 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 the other Party BioVie has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party SpinCo obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees of SpinCo have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party SpinCo shall promptly notify the other Party provide notice to BioVie of the existence of the request (which notice shall be delivered to BioVie no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party BioVie a reasonable opportunity to review the information and to assert any rights it or they may have have, including under this Section 10.05 7.9 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(f) Upon receipt by BioVie 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 SpinCo has the sole right hereunder to assert a privilege or immunity, or if BioVie obtains knowledge that any current or former directors, officers, agents or employees of BioVie have received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, BioVie shall promptly provide notice to SpinCo of the existence of the request (which notice shall be delivered to SpinCo no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide SpinCo a reasonable opportunity to review the information and to assert any rights it or they may have, including under this Section 7.9 or otherwise, to prevent the production or disclosure of such Privileged Information.
(g) The Parties agree that they have or may in the future have common legal interests in the BioVie Liabilities and any corresponding legal rights, in the SpinCo Liabilities and any corresponding legal rights, in the Privileged Information and in the preservation of the protected status of the Privileged Information. The Parties have disclosed and exchanged and will disclose and exchange certain Privileged Information between and among themselves in order to further the Parties’ common legal interests.
(h) The transfer of all Information Any furnishing of, or access to, information pursuant to this Agreement is made in reliance on the agreement of IDT BioVie and CTM as SpinCo set forth in Section 10.04 and this Section 10.05, 7.9 and in Section 7.7 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties further agree that (i) the exchange by one Party to the other Party of any Ancillary Agreement Privileged Information that should not have been transferred pursuant to the terms of this Article VII shall not be deemed to constitute a waiver of any privilege or immunity that has been or may be asserted under this Agreement or otherwiseotherwise with respect to such Privileged Information; and (ii) the Party receiving (or for which a Subsidiary has received) such Privileged Information shall promptly return such Privileged Information to the Party (or its applicable Subsidiary) who has the right to assert the privilege or immunity.
(i) In furtherance of, and without limitation to, the Parties’ agreement under this Section 7.9, BioVie and SpinCo shall use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 2 contracts
Sources: Separation Agreement (Option Therapeutics Inc.), Separation Agreement (Option Therapeutics Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will shall be provided prior to the Effective Time have been and will shall be rendered for the collective benefit of each of the members of the IDT Group Parties and the CTM Grouptheir respective Subsidiaries, and that each of the members of the IDT Group Party and the CTM Group its respective Subsidiaries should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which and immunities that may be asserted under applicable LawLaw in connection therewith.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT Merck shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT Merck Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Merck or CTMa Merck Subsidiary or Organon or an Organon Subsidiary. IDT Merck shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Merck Liabilities resulting from any Proceedings that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Merck or CTM; anda Merck Subsidiary or Organon or an Organon Subsidiary.
(ii) CTM Organon shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM Organon Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Organon or CTMan Organon Subsidiary or Merck or a Merck Subsidiary. CTM Organon shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, Organon Liabilities resulting from any Proceedings that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Organon or CTMan Organon Subsidiary or Merck or a Merck Subsidiary.
(iii) If Merck and Organon do not agree as to whether certain information is Privileged Information, then the information shall be treated as Privileged Information, and the Party who believes such information is Privileged Information 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 VIII to resolve any disputes as to whether any information relates solely to the Merck Business, solely to the Organon Business, or to both the Merck Business and the Organon Business.
(c) The Except as otherwise expressly provided in the JDA with respect to Privileged Information shared in the context of defending against existing or potential claims, and subject to Sections 6.07(d) and 6.07(e), the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All 6.07(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Proceedings or other matters which that involve both IDT Parties (or one or more of their respective Subsidiaries) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject Agreement, including with respect to a the opinions delivered pursuant to Section 3.05(a)(vii), and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive or any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, of its Subsidiaries without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(ed) In the event of If any litigation or dispute arises between or among any of the PartiesMerck and Organon, or any members of their respective GroupsSubsidiaries, either such Party may waive a privilege in which the other Party or member of such other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either PartyParty and/or their respective Subsidiaries, each Party agrees that it shall (i) negotiate with the other Party in good faith, shall ; and (ii) endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to Party or any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect of its own legitimate interestsSubsidiaries.
(ge) Upon receipt by either Party Organon or by any member of its Group the Organon Subsidiaries of any subpoena, discovery or other request which arguably calls for 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 Merck or any of the other Party Merck Subsidiaries has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party Organon obtains knowledge that any of its its, or any member of its Group’s the Organon Subsidiary’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party Organon shall promptly notify the other Party provide notice to Merck of the existence of the request (which notice shall be delivered to Merck no later than five business days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party Merck a reasonable opportunity to review the information and to assert any rights it or they may have have, including under this Section 10.05 6.07 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information. Notwithstanding the foregoing, if the proposed production or disclosure of Privileged Information (whether or not relating solely to the Merck Business) is to a Governmental Authority or in response to an enforcement action and such Privileged Information is reasonably believed to have a potential impact on the legal interests of Merck (including its own claims, defenses or potential exposure), then Organon shall use its commercially reasonable efforts to provide notice to Merck at least fourteen days in advance of any waiver of privilege or immunity with respect to such Privileged Information; provided that if Merck withholds waiver of any privilege or immunity pursuant to Section 6.07(c), Organon may produce or disclose only such Privileged Information that is required to be produced or disclosed in response to such Governmental Authority or enforcement action. For the avoidance of doubt, in the case of any conflict or inconsistency between the foregoing and the JDA with respect to Privileged Information shared pursuant to the JDA, the JDA shall prevail.
(f) Upon receipt by Merck or by any of the Merck Subsidiaries 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 Organon or any of the Organon Subsidiaries has the sole right hereunder to assert a privilege or immunity, or if Merck obtains knowledge that any of its, or the Merck Subsidiary’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, Merck shall promptly provide notice to Organon of the existence of the request (which notice shall be delivered to Organon no later than five business days following the receipt of any such subpoena, discovery or other request) and shall provide Organon a reasonable opportunity to review the information and to assert any rights it or they may have, including under this Section 6.07 or otherwise, to prevent the production or disclosure of such Privileged Information. Notwithstanding the foregoing, if the proposed production or disclosure of Privileged Information (whether or not relating solely to the Organon Business) is to a Governmental Authority or in response to an enforcement action and such Privileged Information is reasonably believed to have a potential impact on the legal interests of Organon (including its own claims, defenses or potential exposure), then Merck shall use its commercially reasonable efforts to provide notice to Organon at least fourteen days in advance of any waiver of privilege or immunity with respect to such Privileged Information; provided that if Organon withholds waiver of any privilege or immunity pursuant to Section 6.07(c), Merck may produce or disclose only such Privileged Information that is required to be produced or disclosed in response to such Governmental Authority or enforcement action. For the avoidance of doubt, in the case of any conflict or inconsistency between the foregoing and the JDA with respect to Privileged Information shared pursuant to the JDA, the JDA shall prevail.
(g) The Parties agree that they have or may in the future have common legal interests in the Merck Liabilities and any corresponding legal rights, in the Organon Liabilities and any corresponding legal rights, in the Privileged Information and in the preservation of the protected status of the Privileged Information. The Parties have disclosed and exchanged and will disclose and exchange certain Privileged Information between and among themselves in order to further the Parties’ common legal interests, including pursuant to the JDA.
(h) The transfer of all Information Any furnishing of, or access to, information pursuant to this Agreement is made in reliance on the agreement of IDT Merck and CTM as Organon set forth in Section 10.04 and this Section 10.056.07, in Section 6.08 and in the JDA to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein The Parties further agree that (i) the exchange by one Party (or in any Ancillary Agreement of its Subsidiaries) to the other Party (or any of its Subsidiaries) of any Privileged Information that should not have been transferred pursuant to the terms of this Article VI shall not be deemed to constitute a waiver of any privilege or immunity that has been or may be asserted under this Agreement or otherwiseotherwise with respect to such Privileged Information; and (ii) the Party receiving (or for which a Subsidiary has received) such Privileged Information shall promptly return such Privileged Information to the Party (or its applicable Subsidiary) who has the right to assert the privilege or immunity.
(i) In furtherance of, and without limitation to, the Parties’ agreement under this Section 6.07, Merck and Organon shall, and shall cause their applicable Subsidiaries to, use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Organon & Co.), Separation and Distribution Agreement (Organon & Co.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will shall be provided prior to the Effective Time have been and will shall be rendered for the collective benefit of each of the members of the IDT Aptiv Group and the CTM Delphi Technologies Group, and that each of the members of the IDT Aptiv Group and the CTM Delphi Technologies Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which and immunities that may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following after the Effective Time Time, which services will be rendered solely for the benefit of IDT the Aptiv Group or CTMthe Delphi Technologies Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT Aptiv shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT Aptiv Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the Aptiv Group or CTM. IDT the Delphi Technologies Group; Aptiv shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Aptiv Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the Aptiv Group or CTM; andthe Delphi Technologies Group;
(ii) CTM Delphi Technologies shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM Delphi Technologies Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the Aptiv Group or CTM. CTM the Delphi Technologies Group; Delphi Technologies shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, Delphi Technologies Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the Aptiv Group or CTMthe Delphi Technologies Group; and
(iii) If the Parties do not agree as to whether certain information is Privileged Information, then such information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information shall be entitled to control the assertion or waiver of all privileges and immunities in connection with any such information until such time as it is finally judicially determined that such information is not Privileged Information or unless the Parties otherwise agree. The Parties shall use the procedures set forth in Article IV to resolve any Disputes as to whether any information relates solely to the Aptiv Business, solely to the Delphi Technologies Business, or to both the Aptiv Business and the Delphi Technologies Business.
(c) The Subject to Sections 6.8(d) and 6.8(e), the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All 6.8(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among themor immunity may be waived by either Party without the written consent of the other Party.
(d) No Party may waive If any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute arises between or among any of the Parties, or any members member of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either PartyParty and/or any member of their 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, Party and shall (iii) not unreasonably withhold consent to any request for waiver by the other Party. Each Further, each Party specifically agrees that it will shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests.
(ge) Upon receipt by either Party or by any member of its the Delphi Technologies Group of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Information subject to a shared privilege or immunity or as to which the other Party Aptiv or any of its Subsidiaries has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party Delphi Technologies obtains knowledge that any of its its, or any member of its the Delphi Technologies Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party Delphi Technologies shall promptly notify the other Party provide written notice to Aptiv of the existence of the request (which notice shall be delivered to Aptiv no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party Aptiv a reasonable opportunity to review the information Information and to assert any rights it or they may have have, including under this Section 10.05 6.8 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(hf) The transfer Upon receipt by any member of all the Aptiv 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 Delphi Technologies or any member of the Delphi Technologies Group has the sole right hereunder to assert a privilege or immunity, or if Aptiv obtains knowledge that any of its, or any member of the Aptiv Group’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, Aptiv shall promptly provide written notice to Delphi Technologies of the existence of the request (which notice shall be delivered to Delphi Technologies no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide Delphi Technologies a reasonable opportunity to review the Information and to assert any rights it or they may have, including under this Section 6.8 or otherwise, to prevent the production or disclosure of such Privileged Information.
(g) Any furnishing of, or access to, Information pursuant to this Agreement is and the transfer of the Asset and retention of the Delphi Technologies Assets by Delphi Technologies are made and done in reliance on the agreement of IDT and CTM as the Parties set forth in Section 10.04 and this Section 10.05, 6.8 and in Section 6.9 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and 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. The Parties further agree that: (i) the exchange or retention by one Party to the other Party of any Privileged Information that should not have been transferred or retained, as the case may be, pursuant to the terms of this Article VI 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 retaining such Privileged Information shall promptly return or transfer, as the case may be, such Privileged Information to the Party who has the right to assert the privilege or immunity.
(h) In furtherance of, and without limitation to, the Parties’ agreement under this Section 6.8, Aptiv and Delphi Technologies shall, and shall cause their applicable Subsidiaries to, use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 2 contracts
Sources: Separation and Distribution Agreement, Separation and Distribution Agreement (Delphi Technologies PLC)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will shall be provided prior to the Effective Separation Time have been and will shall be rendered for the collective benefit of each of the members of the IDT HD Group and the CTM LiveWire Group, and that each of the members of the IDT HD Group and the CTM LiveWire Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which and immunities that may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following after the Effective Time Separation Time, which services will be rendered solely for the benefit of IDT the HD Group or CTMthe LiveWire Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT HD shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information, other than such Privileged Information that primarily relates solely to the IDT BusinessLiveWire Business or LiveWire Liabilities, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the HD Group or CTM. IDT shall also be entitledthe LiveWire Group, in perpetuity, and LiveWire Group agrees not to control the assertion or waiver of all privileges in connection with privileged information that relates solely disclose any such Privileged Information to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM; andThird Party;
(ii) CTM LiveWire shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that primarily relates solely to the CTM BusinessLiveWire Business or the LiveWire Liabilities, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the HD Group or CTM. CTM the LiveWire Group, and the HD Group agrees not to disclose any such Privileged Information to any Third Party; and
(iii) If the Parties do not agree as to whether certain information is Privileged Information, then such information shall also be entitledtreated as Privileged Information, in perpetuity, and the Party that believes that such information is Privileged Information shall be entitled to control the assertion or waiver of all privileges and immunities in connection with privileged any such information until such time as it is finally judicially determined that relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged such information is in not Privileged Information or unless the possession of or under the control of IDT or CTMParties otherwise agree.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them[Reserved].
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its the LiveWire Group of any subpoena, discovery or other request which arguably calls for that would reasonably be expected to result in the production or disclosure of information Information subject to a shared privilege or immunity or as to which the other Party HD or any of its Subsidiaries has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party LiveWire obtains knowledge that any of its its, or any member of its the LiveWire Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that would reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party LiveWire shall promptly notify the other Party provide written notice to HD of the existence of the request (which notice shall be delivered to HD no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party HD a reasonable opportunity to review the information Information and to assert any rights it or they may have have, including under this Section 10.05 3.8 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(he) The transfer Upon receipt by any member of all the HD Group of any subpoena, discovery or other request that would reasonably be expected to result in the production or disclosure of Information subject to a shared privilege or immunity or as to which LiveWire or any member of the LiveWire Group has the sole right hereunder to assert a privilege or immunity, or if HD obtains knowledge that any of its, or any member of the HD Group’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that would reasonably be expected to result in the production or disclosure of such Privileged Information, HD shall promptly provide written notice to LiveWire of the existence of the request (which notice shall be delivered to LiveWire no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide LiveWire a reasonable opportunity to review the Information and to assert any rights it or they may have, including under this Section 3.8 or otherwise, to prevent the production or disclosure of such Privileged Information.
(f) Any furnishing of, or access to, Information pursuant to this Agreement is and the transfer of the Assets and retention of the LiveWire Assets by LiveWire are made and done in reliance on the agreement of IDT and CTM as the Parties set forth in Section 10.04 and this Section 10.05, 3.8 and in Section 3.9 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and members of their respective 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. The Parties further agree that: (i) the inadvertent exchange or retention by one Party to the other Party of any Privileged Information 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 retaining such Privileged Information shall promptly return or transfer, as the case may be, such Privileged Information to the Party who has the right to assert the privilege or immunity.
(g) In furtherance of, and without limitation to, the Parties’ agreement under this Section 3.8, HD and LiveWire shall, and shall cause their applicable Subsidiaries to, use reasonable efforts to maintain their respective separate and joint privileges and immunities.
Appears in 2 contracts
Sources: Separation Agreement (Harley-Davidson, Inc.), Separation Agreement (LiveWire Group, Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group and the CTM GroupSPCI, and that each of the members of the IDT Group and the CTM Group SPCI should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTMSPCI, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Business, whether or not the privileged information is in the possession of or under the control of IDT or CTMSPCI. IDT shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTMSPCI; and
(ii) CTM SPCI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM SPCI Business, whether or not the privileged information is in the possession of or under the control of IDT or CTMSPCI. CTM SPCI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM SPCI Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMSPCI, whether or not the privileged information is in the possession of or under the control of IDT or CTMSPCI.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM SPCI in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s Group (if applicable) 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 information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsGroup (if applicable)s, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties or members of their Group (if applicable) regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group (if applicable) of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its GroupGroup (if applicable)’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM SPCI as set forth in Section 10.04 and this Section 10.05, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall 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 and Distribution Agreement (Straight Path Communications Inc.), Separation and Distribution Agreement (Straight Path Communications Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT RemainCo Group and the CTM members of the SpinCo Group, and that each of the members of the IDT RemainCo Group and each of the CTM members of the SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT The Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which Privileged Information that relates solely primarily to the IDT BusinessRoyalty Business (other than with respect to Liabilities as to which SpinCo is required to provide indemnification under Article V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. IDT The Company shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information any Privileged Information that relates solely primarily to the subject matter of any claims constituting IDT RemainCo Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the RemainCo Group or CTM; andthe SpinCo Group.
(iib) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Privileged Information which relates solely primarily to the CTM BusinessSpinCo Business (other than with respect to matters or claims that are RemainCo Liabilities or other Liabilities as to which the Company is required to provide indemnification under Article V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information that any Privileged Information which relates solely to the subject matter of any claims constituting CTM SpinCo Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V, now pending or which may be asserted in the future, in any lawsuits or other proceedings Proceedings initiated against or by CTMSpinCo, whether or not the privileged information Privileged Information is in the possession of SpinCo or under the control of IDT any member of the RemainCo Group or CTMthe SpinCo Group.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.056.6, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b6.6(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could may be asserted under any applicable Law, and in which any the other Party has a shared privilege, without the written consent of the other Party, which shall such consent not to be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third Party Claims or as provided in subsections (e) or (fSection 6.6(e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, or any members of their the respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information Privileged Information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their the respective Groups, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third Party Claims.
(f) If a dispute arises between or among the Parties or any members of their Group the respective Groups regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall (i) negotiate in good faith, shall (ii) endeavor to minimize any prejudice to the rights of the other Party, and shall (iii) not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group the respective Groups of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests which arguably calls for request that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) business days following the receipt of such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 6.6 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement agreements of IDT the Company and CTM SpinCo, as set forth in Section 10.04 6.2, Section 6.3, Section 6.4, Section 6.5 and this Section 10.056.6, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Section 6.1, Section 6.2, Section 6.3 and Section 6.4 hereof, the agreement to provide witnesses and individuals pursuant to Section 6.2 and Section 6.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 hereof, and the transfer of Privileged Information between and among the Parties and their respective Subsidiaries and Representatives 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.
(i) Each of the Parties acknowledge that ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“Prior Company Counsel”) have, on or prior to the Distribution Effective Time, represented one or more of the Parties and their Subsidiaries and other Affiliates, and their respective officers, employees and directors (each such Person, other than the RemainCo Group, a “Designated Person”) in one or more matters relating to this Agreement (including any matter that may be related to a litigation, claim or dispute arising under or related to this Agreement) (each, an “Existing Representation”), and that, in the event of any post-Closing matters (x) relating to this Agreement (including any matter that may be related to a litigation, claim or dispute arising under or related to this Agreement) and (y) in which the Company or any of its Affiliates (including the RemainCo Group), on the one hand, and one or more Designated Persons, on the other hand, are or may be adverse to each other (each, a “Post-Closing Matter”), the Designated Persons reasonably anticipate that Prior Company Counsel will represent them in connection with such matters. Accordingly, the Company hereby (i) waives and shall not assert, and agrees after the Distribution Effective Time to cause its Affiliates to waive and to not assert, any conflict of interest arising out of or relating to the representation by one or more Prior Company Counsel of one or more Designated Persons in connection with one or more Post-Closing Matters (the “Post-Closing Representation”) and (ii) agrees that, in the event that a Post-Closing Matter arises, Prior Company Counsel may represent one or more Designated Persons in such Post-Closing Matter even though the interests of such Person(s) may be directly adverse to the Company or any of its Affiliates (including the RemainCo Group), and even though Prior Company Counsel may (A) have represented the RemainCo Group in a matter substantially related to such dispute or (B) be currently representing the RemainCo Group. Without limiting the foregoing, the Company (on behalf of itself and its Affiliates) consents to the disclosure by Prior Company Counsel, in connection with one or more Post-Closing Representations, to the Designated Persons of any information substantially related to such Post-Closing Representations learned by Prior Company Counsel in the course of one or more Existing Representations, whether or not such information is subject to the attorney-client privilege of the RemainCo Group or Prior Company Counsel’s duty of confidentiality as to the RemainCo Group and whether or not such disclosure is made before or after the Distribution Effective Time.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (First Tracks Biotherapeutics, Inc.), Separation and Distribution Agreement (First Tracks Biotherapeutics, Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT EPC Group and the CTM EHP Group, and that each of the members of the IDT EPC Group and the CTM EHP Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges and immunities which may be asserted under applicable Law.
Law in connection therewith. To allocate the interests of each Party in the Privileged Information or any other Information (bincluding, for the avoidance of doubt, any Information about Patents, Trademarks, or Other Intellectual Property) The Parties recognize that as to which any Party or Group Member of a Party is entitled to assert a privilege, immunity or other applicable protection in connection with legal and or other professional services will be that have been provided following prior to the Effective Time which will be rendered solely for the collective benefit of IDT each of the Parties and their respective Group Members, whether or CTMnot such a privilege, as immunity or protection exists or the case may be. With respect to such post-separation servicesexistence of which is in dispute (collectively, “Common Privileges”), the Parties hereto agree as follows:
(ia) IDT EPC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities and protections in connection with privileged information Privileged Information which relates solely to the IDT EPC Business and, subject to Section 7.08(c), not to the EHP Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any EPC Group Member or CTMany EHP Group Member. IDT shall EPC also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM; and
(ii) CTM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities and protections in connection with privileged information Privileged Information which relates solely to the CTM Businessany pending or future Action that is, or which EPC reasonably anticipates may become, an EPC Liability and that is not also, or that EPC reasonably anticipates will not become, an EHP Liability or a Shared Liability, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any EPC Group Member or CTM. CTM any EHP Group Member.
(b) Subject to Section 7.08(c), EHP shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities and protections in connection with privileged information that Privileged Information which relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in EHP Business and not to the future, in any lawsuits or other proceedings initiated against or by CTMEPC Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any EPC Group Member or CTMany EHP Group Member. EHP also shall be entitled, in perpetuity, to control the assertion or waiver of all privileges, immunities and protections in connection with Privileged Information which relates to any pending or future Action that is, or which EHP reasonably anticipates may become, an EHP Liability and that is not also, or that EHP reasonably anticipates will not become, an EPC Liability or a Shared Liability, whether or not the Privileged Information is in the possession of or under the control of any EPC Group Member or any EHP Group Member.
(c) If the Parties do not agree as to whether certain Information is Privileged Information, then such Information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information shall be entitled to control the assertion or waiver of all privileges, immunities and protections in connection with any such Information unless the Parties otherwise agree. The Parties agree shall use the procedures set forth in Article XI to resolve any disputes as to whether any information relates to any pending or future Action that they shall have a shared privilegeis, with equal right or is reasonably anticipated to assert become, an EHP Liability or waive, subject an EPC Liability.
(d) Subject to the restrictions in this Section 10.057.08, with respect EPC and EHP agree that they shall have equal right to assert all privileges Common Privileges not allocated pursuant to the terms of Section 10.05(b7.08(a). All privileges , Section 7.08(b), or Section 7.08(c), (collectively, “Shared Privileges”) and all privileges, immunities and protections relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one or more of their respective Group Members) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive including any privilege which could be asserted under any applicable LawShared Liability), and in which that no such Shared Privilege may be waived by either Party (or any other Party has a shared privilege, of its Group Members) without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) If a dispute arises between any EPC Group Member, on the one hand, and any EHP Group Member, on the other hand, regarding whether a Shared Privilege should be waived to protect or advance the interests of either Party and/or their respective Group Members, each Party agrees that it shall (i) negotiate with the other Party in good faith; (ii) endeavor to minimize any prejudice to the rights of the other Party; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. In the event of any litigation Action or other dispute between or among any of the Parties, or any members of their respective GroupsGroup Members, either such Party may waive a privilege and/or use any Privileged Information in which the other Party or member of such other Party’s its Group Members has a shared privilegeShared Privilege, without obtaining the consent of the other Party; provided, that such waiver of a shared privilege Shared Privilege shall be effective only as to the use of information with respect to the litigation Action or other dispute between the relevant Parties and/or the applicable members of their respective GroupsGroup Members, respectively, and shall not operate as or be used by either Party as a basis for asserting a waiver of the shared privilege Shared Privilege with respect to third partiesThird Parties; and provided, further, that the Parties shall, and shall cause their applicable Group Members to, use reasonable efforts to maintain any such Shared Privilege with respect to Third Parties.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party hereto or by any member Group Member of its Group of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Privileged Information or other Information subject to a shared privilege Shared Privilege or as to which the other Party or a member of such other Party’s Group has the sole right hereunder to assert a privilege, immunity or protection, or if either Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls call for the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be in writing and delivered no later than seven Business Days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information Privileged Information or other Information and to assert any rights it or they any Group Member of its Group may have under this Section 10.05 7.08 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information. Each Party shall bear its own expenses in connection with any such request.
(hg) The transfer of all Any furnishing of, or access to, Information pursuant to this Agreement is made in reliance on the agreement of IDT EPC and CTM EHP, as set forth in Section 10.04 and this Section 10.05, Article VII to maintain the confidentiality of privileged information the Privileged Information and to assert and maintain all applicable privileges, immunities and protections. Nothing provided for herein The access to Privileged Information or in any Ancillary Agreement other Information being granted and the agreement to provide witnesses herein, the furnishing of notices and documents and other cooperative efforts contemplated hereby, and the transfer of Privileged Information between and among the Parties hereto and of their respective Group Members pursuant hereto shall not be deemed a waiver of any privilege privilege, immunity or protection 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 Privileged Information that should not have been transferred pursuant to the terms of this Article VII shall not be deemed to constitute a waiver of any privilege, immunity or protection 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, immunity or protection.
(h) In furtherance of, and without limitation to, the Parties’ agreement under this Section 7.08, EPC and EHP shall, and shall cause their applicable Group Members to, use reasonable efforts to maintain their respective separate and joint privileges, immunities and/or protections, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Energizer Holdings Inc), Separation and Distribution Agreement (Energizer SpinCo, Inc.)
Privileged Matters. (a) The Parties parties recognize that legal and other professional services that have been and will shall be provided prior to the Effective Time have been and will shall be rendered for the collective benefit of each of the members of the IDT Group parties and the CTM Grouptheir respective Subsidiaries, and that each of the members of the IDT Group party and the CTM Group its respective Subsidiaries should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which and immunities that may be asserted under applicable LawLaw in connection therewith.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation services, the Parties parties agree as follows:
: (i) IDT NOV shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT NOV Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the NOV Group or CTM. IDT the SpinCo Group; NOV shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Excluded Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the NOV Group or CTMthe SpinCo Group; and
and (ii) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM SpinCo Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the NOV Group or CTM. CTM the SpinCo Group; SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT a member of the NOV Group or CTMthe SpinCo Group.
(c) The Parties Subject to Sections 7.9(d) and 7.9(e), the parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All 7.9(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT parties (or one or more of their respective Subsidiaries) and CTM in respect of which both Parties retain any responsibility or Liability parties have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No Party or immunity may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, waived by either party without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b)party.
(ed) In the event of If any litigation or dispute arises between or among any of the PartiesNOV and SpinCo, or any members of their respective GroupsSubsidiaries, either such Party may waive a privilege in which the other Party or member of such other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either Partyparty and/or their respective Subsidiaries, each Party 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, party and shall (iii) not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party Further, each party specifically agrees that it will shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests.
(ge) Upon receipt by either Party SpinCo or by any member of its Group the SpinCo Subsidiaries of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Information subject to a shared privilege or immunity or as to which NOV or any of the other Party NOV Subsidiaries has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party SpinCo obtains knowledge that any of its its, or any member of its Group’s a SpinCo Subsidiary’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party SpinCo shall promptly notify the other Party provide written notice to NOV of the existence of the request (which notice shall be delivered to NOV no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party NOV a reasonable opportunity to review the information Information and to assert any rights it or they may have have, including under this Section 10.05 7.8 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(hf) The transfer Upon receipt by NOV or by any of all the NOV Subsidiaries 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 SpinCo or any of the SpinCo Subsidiaries has the sole right hereunder to assert a privilege or immunity, or if NOV obtains knowledge that any of its, or a NOV Subsidiary’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that may reasonably be expected to result in the production or disclosure of such Privileged Information, NOV shall promptly provide written notice to SpinCo of the existence of the request (which notice shall be delivered to SpinCo no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide SpinCo a reasonable opportunity to review the Information and to assert any rights it or they may have, including under this Section 7.8 or otherwise, to prevent the production or disclosure of such Privileged Information.
(g) Any furnishing of, or access to, Information pursuant to this Agreement is and the transfer of the Asset and retention of the Excluded Assets are made and done in reliance on the agreement of IDT and CTM as the parties set forth in Section 10.04 and this Section 10.05, 7.9 and in Section 7.10 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein The parties further agree that: (i) the exchange or in retention by one party to the other party of any Ancillary Agreement Privileged Information that should not have been transferred or retained, as the case may be, pursuant to the terms of this Article VII shall not be deemed to constitute a waiver of any privilege or immunity that has been or may be asserted under this Agreement or otherwiseotherwise with respect to such Privileged Information; and (ii) the party receiving or retaining such Privileged Information shall promptly return or transfer, as the case may be, such Privileged Information to the party who has the right to assert the privilege or immunity.
(h) In furtherance of, and without limitation to, the parties’ agreement under this Section 7.9, NOV and SpinCo shall, and shall cause their applicable Subsidiaries to, use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (NOW Inc.), Separation and Distribution Agreement (NOW Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to To allocate the Effective Time have been and will be rendered for the collective benefit interests of each of the members of the IDT Group and the CTM Group, and that each of the members of the IDT Group and the CTM Group should be deemed to be the client party with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(ia) IDT DHPI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the IDT DHPI Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT DHPI or CTMRP. IDT DHPI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities of the DHPI Group, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by DHPI, whether or not the Privileged Information is in the possession of or under the control of DHPI or RP.
(b) RP shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the RP Business, whether or not the Privileged Information is in the possession of or under the control of DHPI or RP. RP shall also be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the subject matter of any claims constituting RP Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Actions initiated against or by IDTRP, whether or not the privileged information Privileged Information is in the possession of RP or under the control of IDT DHPI or CTM; and
(ii) CTM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM. CTM shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information is in the possession of or under the control of IDT or CTMRP.
(c) The Parties DHPI and RP agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as set forth in Section 10.04 and this Section 10.05, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwise.this
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Royal Phoenix), Separation and Distribution Agreement (Desert Health Products Inc)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group Demand Media Entities and the CTM GroupRightside Entities, and that each of the members Demand Media Entities, and each of the IDT Group and the CTM Group Rightside Entities should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT Demand Media shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessDemand Media Business (other than with respect to Liabilities as to which Rightside is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT Demand Media, Rightside or CTMany other Entity. IDT Demand Media shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Demand Media Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT Demand Media, Rightside or CTM; andany other Entity.
(iib) CTM Rightside shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessRightside Business (other than with respect to Liabilities as to which Demand Media is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT Demand Media, Rightside or CTMany other Entity. CTM Rightside shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Rightside Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMRightside, whether or not the privileged information is in the possession of or under the control of IDT Demand Media, Rightside or CTMany other Entity.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 7.5(a) and 7.5(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 7.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Demand Media and CTM Rightside, as set forth in Section 10.04 Sections 7.2, 7.4, and this Section 10.057.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.1, 7.2, and 7.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 7.2 and 7.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 7.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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 and Distribution Agreement (Rightside Group, Ltd.), Separation and Distribution Agreement (Rightside Group, Ltd.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Rayonier Group and the CTM SpinCo Group, and that each of the members of the IDT Rayonier Group and the CTM SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties parties recognize that legal and other professional services will be provided following the Effective Time Time, which services will be rendered solely for the benefit of IDT the Rayonier Group or CTMthe SpinCo Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT Rayonier shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT Rayonier Business and not to the SpinCo Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Rayonier Group or CTMany member of the SpinCo Group. IDT Rayonier shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Rayonier Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Rayonier Group or CTMany member of the SpinCo Group; and
(ii) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM SpinCo Business and not to the Rayonier Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Rayonier Group. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Rayonier Group.
(iii) If the Parties do not agree as to whether certain information is Privileged Information, then such information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information 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 use the procedures set forth in Article VII to resolve any disputes as to whether any information relates solely to the Rayonier Business, solely to the SpinCo Business, or to both the Rayonier Business and the SpinCo Business.
(c) The Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All 6.8(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party.
(d) If any Dispute arises between the Parties or any members of their respective Group regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any member of their respective Group, which each Party agrees that it shall not be unreasonably withheld or delayed or as provided in subsections (ei) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon negotiate with the other Party requesting such consent. Each Party shall use its reasonable best efforts in good faith; (ii) endeavor to preserve minimize any privilege held prejudice to the rights of the other Party; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, each Party if specifically agrees that privilege is it shall not withhold its consent to the waiver of a shared privilege or has been allocated immunity for any purpose except in good faith to the other Party pursuant to Section 10.05(b)protect its own legitimate interests.
(e) In the event of any litigation adversarial Action or dispute Dispute between or among any of the PartiesRayonier and SpinCo, or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Partypursuant to Section 6.8(c); provided, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute Action between the relevant 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 partiesany Third Party.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or immunity or as to which the other another Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information Privileged Information and to assert any rights it or they may have under this Section 10.05 6.8 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(hg) The Any furnishing of, or access or transfer of all Information of, any information pursuant to this Agreement is made in reliance on the agreement of IDT Rayonier and CTM as SpinCo set forth in Section 10.04 and this Section 10.05, 6.8 and in Section 6.9 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and 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.
(h) In connection with any matter contemplated by Section 6.7 or this Section 6.8, the Parties agree to, and to cause the applicable members of their Group to, use commercially reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Rayonier Advanced Materials Inc.), Separation and Distribution Agreement (Rayonier Holding Co)
Privileged Matters. (a) The Solely for purposes of asserting privileges which may be asserted under applicable law, and without limiting the provisions of Section 7.10: (x) the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution (whether by outside counsel, in-house counsel or other legal professionals) have been and will be rendered for the collective benefit of Parent and its Subsidiaries (in such capacity) and (y) each of the members of the IDT Parent Group and the CTM Group, and that each of the members of the IDT SpinCo Group and the CTM Group should shall be deemed to be have been the client in connection with such services with respect to such pre-separation services for periods prior to the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Distribution. The Parties recognize that legal and other professional services will be provided following the Effective Time Distribution, which services will be rendered solely for the benefit of IDT the Parent Group or CTMthe SpinCo Group, as the case may be. With respect to such post-separation services, the Parties agree as follows:.
(ib) IDT Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information which Information that relates solely to the IDT Parent Business or the Distribution and not to the operations of the SpinCo Business, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the Parent Group or CTMany member of the SpinCo Group. IDT Parent shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information Information that relates solely to the subject matter of any claims constituting IDT Parent Assets or Parent Liabilities, and not any SpinCo Assets or SpinCo Liabilities, in connection with any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the Parent Group or CTM; any member of the SpinCo Group; and
(iic) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information which Information that relates solely to the CTM Businessoperations of the SpinCo Business and not to the Parent Business or the Distribution, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Parent Group. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Assets or SpinCo Liabilities and not any Parent Assets or Parent Liabilities in connection with any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Parent Group.
(cd) The Subject to the remaining provisions of this Section 7.08, the Parties agree that they Parent shall have a shared privilegebe entitled, with equal right in perpetuity, to assert control the assertion or waive, subject to the restrictions in this Section 10.05, with respect to waiver of all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All privileges relating to 7.10 in connection with any claimsActions, proceedings, litigation, disputesor threatened or contemplated Actions, or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b)Agreement.
(e) In If any dispute arises between the event of any litigation or dispute between or among any of the Parties, Parties or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either PartyParty or any member of their 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, Party and shall the members of its Group; and (iii) not unreasonably withhold withhold, delay or condition consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(gf) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for (or of written notice that it will receive or has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of information privileged Information subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge or becomes aware that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for (or have received written notice that they will receive or have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of such privileged informationInformation, such Party shall promptly notify the other Party of the existence of the any such subpoena, discovery or other request and shall provide the other Party a reasonable opportunity to review the information privileged Information and to assert any rights it or they may have have, under this Section 10.05 7.08 or otherwise otherwise, to prevent the production or disclosure of such privileged informationInformation; provided that if such Party is prohibited by applicable Law from 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 inform the other Party 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, under this Section 7.08 or otherwise, to prevent the production or disclosure of such privileged Information.
(hg) The Parties agree that their respective rights to any access to Information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of all privileged Information between the Parties and members of their respective Groups pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as set forth in Section 10.04 and this Section 10.05Agreement, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary 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 7.09 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 2 contracts
Sources: Separation and Distribution Agreement (Kyndryl Holdings, Inc.), Separation and Distribution Agreement (Kyndryl Holdings, LLC)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Ventas Group and the CTM SpinCo Group, and that each of the members of the IDT Ventas Group and the CTM SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties parties recognize that legal and other professional services will be provided following the Effective Time Time, which services will be rendered solely for the benefit of IDT the Ventas Group or CTMthe SpinCo Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT Ventas shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT Ventas Business and not to the SpinCo Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Ventas Group or CTMany member of the SpinCo Group. IDT Ventas shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Ventas Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Ventas Group or CTM; andany member of the SpinCo Group;
(ii) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM SpinCo Business and not to the Ventas Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Ventas Group. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Ventas Group; and
(iii) If the Parties do not agree as to whether certain information is Privileged Information, then such information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information 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 use the procedures set forth in Article VII to resolve any disputes as to whether any information relates solely to the Ventas Business, solely to the SpinCo Business, or to both the Ventas Business and the SpinCo Business.
(c) The Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All 6.8(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party.
(d) If any Dispute arises between the Parties or any members of their respective Group regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any member of their respective Group, which each Party agrees that it shall not be unreasonably withheld or delayed or as provided in subsections (ei) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon negotiate with the other Party requesting such consent. Each Party shall use its reasonable best efforts in good faith; (ii) endeavor to preserve minimize any privilege held prejudice to the rights of the other Party; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, each Party if specifically agrees that privilege is it shall not withhold its consent to the waiver of a shared privilege or has been allocated immunity for any purpose except in good faith to the other Party pursuant to Section 10.05(b)protect its own legitimate interests.
(e) In the event of any litigation adversarial Action or dispute Dispute between or among any of the PartiesVentas and SpinCo, or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Partypursuant to Section 6.8(c); provided, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute Action between the relevant 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 partiesany Third Party.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or immunity or as to which the other another Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information Privileged Information and to assert any rights it or they may have under this Section 10.05 6.8 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(g) In the event either Party inadvertently discloses any Privileged Information or inadvertently waives any privilege or immunity as to which the other Party has any interest, that Party shall immediately (i) advise the other Party of the inadvertent disclosure or waiver and (ii) take all reasonably available steps to claw back any waived or disclosed information and restore the privilege or immunity.
(h) The Any furnishing of, or access or transfer of all Information of, any information pursuant to this Agreement is made in reliance on the agreement of IDT Ventas and CTM as SpinCo set forth in Section 10.04 and this Section 10.05, 6.8 and in Section 6.9 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and 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.
(i) In connection with any matter contemplated by Section 6.7 or this Section 6.8, the Parties agree to, and to cause the applicable members of their Group to, use commercially reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Ventas Inc), Separation and Distribution Agreement (Care Capital Properties, Inc.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of IMPCO, the members of the IDT IMPCO Group and the CTM members of the Quantum Group, and that each of IMPCO, the members of the IDT IMPCO Group and the CTM members of the Quantum Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following law. To allocate the Effective Time interests of each party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any party is entitled to such post-separation servicesassert a privilege, the Parties parties agree as follows:
(ia) IDT IMPCO shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT IMPCO Business, whether or not the privileged information is in the possession of or under the control of IDT IMPCO or CTMQuantum. IDT IMPCO shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT IMPCO Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTIMPCO, whether or not the privileged information is in the possession of or under the control of IDT IMPCO or CTM; andQuantum.
(iib) CTM Quantum shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Quantum Business, whether or not the privileged information is in the possession of or under the control of IDT IMPCO or CTMQuantum. CTM Quantum shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Quantum Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, Quantum whether or not the privileged information is in the possession of or under the control of IDT IMPCO or CTMQuantum.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT IMPCO and CTM Quantum in respect of which both Parties parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties (and then only to the limited extent necessary under the circumstances) or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after written notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party or parties of the existence of the request and shall provide the other Party party or parties a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT IMPCO and CTM Quantum, as set forth in Section 10.04 Sections 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1 and 4.2 hereof, the agreement to provide witnesses and individuals pursuant to Sections 2.10 and 3.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.3 hereof, and the transfer of privileged information between and among the parties and their respective 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.
Appears in 2 contracts
Sources: Contribution and Distribution Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Contribution and Distribution Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Privileged Matters. (a) The Parties Hotel and the Company recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group both Hotel and the CTM Group, Company and that each of the members of the IDT Group both Hotel and the CTM Group Company should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following Privileges. To allocate the Effective Time which will be rendered solely for interests of each party in the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(i) IDT 7.7.1 Hotel shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the IDT Hotel Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Hotel or CTMthe Company. IDT Hotel shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information that Privileged Information which relates solely to the subject matter of any claims constituting IDT Hotel Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Actions initiated against or by IDTHotel, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Hotel or CTM; andthe Company.
(ii) CTM 7.7.2 The Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the CTM Company Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Hotel or CTMthe Company. CTM The Company shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information that Privileged Information which relates solely to the subject matter of any claims constituting CTM Company Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Actions initiated against or by CTMthe Company, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Hotel or CTMthe Company.
(c) The Parties 7.7.3 Hotel and the Company agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, 7.7 with respect to all privileges Privileges not allocated pursuant to the terms of Section 10.05(b)Sections 7.7.1 and 7.7.2 hereof. All privileges Privileges relating to any claims, proceedings, litigation, disputes, Actions or other matters which involve both IDT Hotel and CTM the Company in respect of which both Parties Hotel and the Company retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among themPrivilege.
(d) 7.7.4 No Party party may waive any privilege Privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party has a shared privilegePrivilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third parties or as provided in subsections (e) or (f) belowSection 7.7.5 hereof. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) 7.7.5 In the event of any litigation or dispute between Hotel or among any of the Parties, Hotel Subsidiaries and the Company or any members of their respective Groupsthe Company Subsidiaries, either such Party party may waive a privilege Privilege in which the other Party or member of such other Party’s Group party has a shared privilegePrivilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege Privilege shall be effective only as to the use of information Information or counsel with respect to the litigation or dispute between Hotel or the relevant Parties and/or Hotel Subsidiaries and the applicable members of their respective GroupsCompany or the Company Subsidiaries, and shall not operate as a waiver of the shared privilege Privilege with respect to third parties.
(f) 7.7.6 If a dispute arises between the Parties or members of their Group parties regarding whether a privilege Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) 7.7.7 Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege Privilege or as to which the other Party party has the sole right hereunder to assert a privilegePrivilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged informationPrivileged Information, such Party party shall promptly notify the other Party party of the existence of the such subpoena, discovery or other request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 7.7 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) 7.7.8 The transfer of all the Company Books and Records and the Hotel Books and Records and other Information pursuant to this Agreement between Hotel and its Subsidiaries and the Company and its Subsidiaries, is made in reliance on the agreement of IDT Hotel and CTM the Company, as set forth in Section 10.04 Sections 7.6 and this Section 10.05, 7.7 hereof to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesPrivileges with respect to third parties. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.1 and 7.2 hereof, the agreement to provide witnesses and individuals pursuant to Section 7.3 hereof and certain services pursuant to Section 6.5 hereof and the transfer of Privileged Information between Hotel and its Subsidiaries and the Company and its Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any privilege the Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 2 contracts
Sources: Plan of Reorganization and Distribution Agreement (WHG Resorts & Casinos Inc), Plan of Reorganization and Distribution Agreement (WMS Industries Inc /De/)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group Integra Entities and the CTM GroupSeaSpine Entities, and that each of the members Integra Entities, and each of the IDT Group and the CTM Group SeaSpine Entities should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT Integra shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessIntegra Business (other than with respect to Liabilities as to which SeaSpine is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT Integra, SeaSpine or CTMany other Entity. IDT Integra shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Integra Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT Integra, SeaSpine or CTM; andany other Entity.
(iib) CTM SeaSpine shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessSeaSpine Business (other than with respect to Liabilities as to which Integra is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT Integra, SeaSpine or CTMany other Entity. CTM SeaSpine shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM SeaSpine Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMSeaSpine, whether or not the privileged information is in the possession of or under the control of IDT Integra, SeaSpine or CTMany other Entity.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 7.5(a) and 7.5(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 7.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Integra and CTM SeaSpine, as set forth in Section 10.04 Sections 7.2, 7.4, and this Section 10.057.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.1, 7.2, and 7.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 7.2 and 7.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 7.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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 and Distribution Agreement (SeaSpine Holdings Corp), Separation and Distribution Agreement (SeaSpine Holdings Corp)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group and the CTM GroupZedge, and that each of the members of the IDT Group and the CTM Group Zedge should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTMZedge, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Business, whether or not the privileged information is in the possession of or under the control of IDT or CTMZedge. IDT shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTMZedge; and
(ii) CTM Zedge shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Zedge Business, whether or not the privileged information is in the possession of or under the control of IDT or CTMZedge. CTM Zedge shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Zedge Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMZedge, whether or not the privileged information is in the possession of or under the control of IDT or CTMZedge.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM Zedge in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s Group (if applicable) 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 information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsGroup (if applicable)s, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties or members of their Group (if applicable) regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group (if applicable) of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its GroupGroup (if applicable)’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM Zedge as set forth in Section 10.04 and this Section 10.05, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall 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 and Distribution Agreement (Zedge, Inc.), Separation and Distribution Agreement (Zedge, Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to To allocate the Effective Time have been and will be rendered for the collective benefit interests of each of the members of the IDT Group and the CTM Group, and that each of the members of the IDT Group and the CTM Group should be deemed to be the client Party with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesprivileged information, the Parties agree as follows:
(ia) IDT ParentCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT ParentCo Business, whether or not the privileged information is in the possession of or under the control of IDT ParentCo or CTMSpinCo. IDT ParentCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT LiabilitiesLiabilities of ParentCo and its Affiliates and all Persons who at any time prior to or as of the Effective Time were directors, officers, agents or employees of ParentCo or any of its Affiliates (in each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, now pending or which may be asserted in the future, in any lawsuits or other proceedings Actions initiated against or by IDT▇▇▇▇▇▇▇▇, whether or not the privileged information is in the possession of or under the control of IDT ParentCo or CTM; andSpinCo.
(iib) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM SpinCo Business, whether or not the privileged information is in the possession of or under the control of IDT ParentCo or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM LiabilitiesLiabilities of SpinCo and its Affiliates and all Persons who at any time prior to or as of the Effective Time were directors, officers, agents or employees of SpinCo or any of its Affiliates (in each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, now pending or which may be asserted in the future, in any lawsuits or other proceedings Actions initiated against or by CTMSpinCo, whether or not the privileged information is in the possession of SpinCo or under the control of IDT ParentCo or CTMSpinCo.
(c) The Parties ParentCo and SpinCo agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in of this Section 10.058.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 8.05(a) and 8.05(b). All privileges relating to any claims, proceedings, litigation, disputes, disputes or other matters which involve both IDT ParentCo and CTM SpinCo in respect of which both Parties ParentCo and SpinCo retain any responsibility or Liability liability under this Agreement shall be subject to a shared privilege among themprivilege.
(d) No Party may waive any privilege which could be asserted under any applicable Lawlaw, and in which any if the other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with Third Parties or as provided in subsections (e) or (f) belowSection 8.05(e). Consent Such consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among the Parties and any of the Parties, or any members of their respective Groupsits Affiliates, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; provided, provided that such waiver of a shared privilege shall be effective only as to the use of information Information with respect to the litigation or dispute between the relevant Parties and/or the applicable members and any of their respective Groupsits Affiliates, and shall not operate as a waiver of the shared privilege with respect to third partiesThird Parties.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have has received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 8.05 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT ParentCo and CTM SpinCo, as set forth in Section 10.04 and this Section 10.058.05 and elsewhere in this Agreement, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to Information being granted pursuant to Sections 8.01 and 8.02, the agreement to provide witnesses and individuals pursuant to Section 8.03 and the transfer of privileged information between the Parties 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 and Distribution Agreement (Leoch Energy Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Closing (the “Pre-Closing Services”) have been and will be rendered for the collective benefit of each of the members of the IDT Group Sellers and the CTM Grouptheir respective Subsidiaries, and that each of the members of Sellers and their respective Subsidiaries (other than the IDT Group Acquired Companies), on the one hand, and the CTM Group Acquired Companies, on the other hand, should be deemed to be the client with respect to such prePre-separation services Closing Services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation services, the Parties agree as followsexcept that:
(i) IDT The Sellers shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Liz Business, whether or not the privileged information is in the possession of or under the control of IDT the Sellers or CTMParent and the Acquired Companies. IDT The Sellers shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT the Retained Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Legal Actions initiated against or by IDTa Seller or its Subsidiaries (other than the Acquired Companies), whether or not the privileged information is in the possession of or under the control of IDT the Sellers or CTM; andParent and the Acquired Companies.
(ii) CTM Parent and the Acquired Companies shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Mexx Europe Business, whether or not the privileged information is in the possession of or under the control of IDT the Sellers or CTM. CTM shall also be entitled, in perpetuity, to control Parent and the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information is in the possession of or under the control of IDT or CTMAcquired Companies.
(cb) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.12, with respect to all privileges pertaining to Pre-Closing Services not allocated pursuant to the terms of Section 10.05(b7.12(a)(i) or (ii), including with respect to Group Legal Action. All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT the Sellers and CTM the Buyers in respect of which both the Parties retain any responsibility or Liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(dc) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld withheld, conditioned or delayed or as provided in subsections (ed) or (fe) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b7.12(a)(i) or (ii).
(ed) In the event of any litigation Legal Action or dispute between or among any of the Parties, Buyers or any members of their respective GroupsSubsidiaries (including after the Closing, the Acquired Companies), on the one hand, and the Sellers or any of their respective Subsidiaries, on the other hand, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has its Subsidiaries have 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 information with respect to the litigation or dispute between the relevant Parties and/or the their applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(ge) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery discovery, Order or other request any request, legal proceeding, investigation or legal action which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees have received any subpoena, discovery discovery, Order or other requests any request, legal proceeding, investigation or legal action which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 7.12 or otherwise to prevent the production or disclosure of such privileged information.
(hf) The transfer of all Information information pursuant to this Agreement is made in reliance on the agreement of IDT the Sellers and CTM the Buyers as set forth in Section 10.04 and this Section 10.057.12, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall be deemed a waiver of any privilege that has been or may be asserted under this Agreement, any Ancillary Agreement or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Claiborne Liz Inc)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided on or prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the Corporation, the members of the IDT NMR Group and the CTM members of the IMS HEALTH Group, and that each of the Corporation, the members of the IDT NMR Group and the CTM members of the IMS HEALTH Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following law. To allocate the Effective Time interests of each party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any party is entitled to such post-separation servicesassert a privilege, the Parties parties agree as follows:
(ia) IDT The Corporation shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT NMR Business, whether or not the privileged information is in the possession of or under the control of IDT the Corporation or CTMIMS HEALTH. IDT The Corporation shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT NMR Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTthe Corporation, whether or not the privileged information is in the possession of or under the control of IDT the Corporation or CTM; andIMS HEALTH.
(iib) CTM IMS HEALTH shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM IMS HEALTH Business, whether or not the privileged information is in the possession of or under the control of IDT the Corporation or CTMIMS HEALTH. CTM IMS HEALTH shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM IMS HEALTH Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, IMS HEALTH whether or not the privileged information is in the possession of or under the control of IDT the Corporation or CTMIMS HEALTH.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT the Corporation and CTM IMS HEALTH in respect of which both Parties parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party hereto has a shared privilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party or parties of the existence of the request and shall provide the other Party party or parties a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT the Corporation and CTM IMS HEALTH, as set forth in Section 10.04 Sections 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1 and 4.2 hereof, the agreement to provide witnesses and individuals pursuant to Sections 2.9 and 3.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.3 hereof, and the transfer of privileged information between and among the parties and their respective 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.
Appears in 1 contract
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to To allocate the Effective Time have been and will be rendered for the collective benefit interests of each of the members of the IDT Group and the CTM Group, and that each of the members of the IDT Group and the CTM Group should be deemed to be the client party with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(ia) IDT Rubicon shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information, which relates solely to the IDT Rubicon Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Rubicon or CTMDAC. IDT Rubicon shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities of the Rubicon Group, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by Rubicon, whether or not the Privileged Information is in the possession of or under the control of Rubicon or DAC.
(b) DAC shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information, which relates solely to the DAC Business, whether or not the Privileged Information is in the possession of or under the control of Rubicon or DAC. DAC shall also be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the subject matter of any claims constituting DAC Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Actions initiated against or by IDTDAC, whether or not the privileged information Privileged Information is in the possession of DAC or under the control of IDT Rubicon or CTM; and
(ii) CTM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM. CTM shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information is in the possession of or under the control of IDT or CTMDAC.
(c) The Parties Rubicon and DAC agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in of this Section 10.057.6, with respect to all privileges Privileges not allocated pursuant to the terms of Section 10.05(bSections 7.6(a) and (b). All privileges Privileges relating to any claims, proceedings, litigation, disputes, disputes or other matters matters, which involve both IDT Rubicon and CTM DAC in respect of which both Parties Rubicon and DAC retain any responsibility or Liability liability under this Agreement shall be subject to a shared privilege among themPrivilege.
(d) No Party party may waive any privilege Privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party has a shared privilegePrivilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third parties or as provided in subsections (e) or (fSection 7.6(e) below. Consent Such consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any a member of the Parties, or any members Rubicon Group and a member of their respective Groupsthe DAC Group, either such Party party may waive a privilege Privilege in which the other Party or member of such other Party’s Group party has a shared privilegePrivilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege Privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or Rubicon Group and the applicable members of their respective GroupsDAC Group, and shall not operate as a waiver of the shared privilege Privilege with respect to third third-parties.
(f) If a dispute arises between the Parties or members of their Group parties regarding whether a privilege Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege Privilege or as to which the other Party party has the sole right hereunder to assert a privilegePrivilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have has received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged informationPrivileged Information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 7.6 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all the DAC Books and Records and the Rubicon Books and Records and other Information pursuant to this Agreement between the Rubicon Group and the DAC Group is made in reliance on the agreement of IDT Rubicon and CTM DAC, as set forth in Section 10.04 Sections 7.5 and 7.6 and elsewhere in this Section 10.05Agreement, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesPrivileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.1 and 7.2, the agreement to provide witnesses and individuals pursuant to Section 7.3 and the transfer of Privileged Information between the Rubicon Group and the DAC Group pursuant to this Agreement shall not be deemed a waiver of any privilege Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Rubicon Financial Inc)
Privileged Matters. (a) The Parties CBS and New Viacom recognize that legal and other professional services relating to Income Tax matters that have been and or will be have been provided prior to the Effective Time Separation Date have been and or will be rendered for the collective benefit of each of Viacom, the members of the IDT CBS Group and the CTM members of the New Viacom Group, and that each of Viacom, the members of the IDT CBS Group and the CTM members of the New Viacom Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
Law in connection therewith. Subject to paragraphs (ba) The Parties recognize that legal through (h) of this Section 8.8, CBS and other professional services will be provided following New Viacom shall, and shall cause the Effective Time members of their respective Groups to, agree to maintain their respective separate and joint privileges, including, without limitation, by executing common interest agreements where necessary or useful for this purpose. To allocate the interests of each party in the information as to which will be rendered solely for any party is entitled to assert a privilege, whether or not such a privilege exists or the benefit existence of IDT or CTM, as the case may be. With respect to such post-separation serviceswhich is in dispute, the Parties parties agree as follows:
(ia) IDT CBS shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Income Tax Information which relates solely to the IDT BusinessCBS Business or to the CBS Discontinued Operations and not to the New Viacom Business or the New Viacom Discontinued Operations, whether or not the privileged information is in the possession of or under the control of IDT members of the CBS Group or CTMthe New Viacom Group. IDT CBS shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that Income Tax Information which relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or future claim, demand or Action relating to Income Taxes that is, or which CBS reasonably anticipates may become a Liability for which CBS may be asserted in the futureresponsible under this Agreement or otherwise, in any lawsuits and that is not also, or other proceedings initiated against that CBS reasonably anticipates will not become a Liability for which New Viacom may be responsible under this Agreement or by IDTotherwise, whether or not the privileged information Income Tax Information is in the possession of or under the control of IDT members of the CBS Group or CTM; andthe New Viacom Group.
(iib) CTM New Viacom shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Income Tax Information which relates solely to the CTM BusinessNew Viacom Business or to the New Viacom Discontinued Operations and not to the CBS Business or the CBS Discontinued Operations, whether or not the privileged information is in the possession of or under the control of IDT members of the CBS Group or CTMthe New Viacom Group. CTM New Viacom shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that Income Tax Information which relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or future claim, demand or Action relating to Income Taxes that is, or which New Viacom reasonably anticipates may become a Liability for which New Viacom may be asserted in the futureresponsible under this Agreement or otherwise, in any lawsuits and that is not also, or other proceedings initiated against that New Viacom reasonably anticipates will not become a Liability for which CBS may be responsible under this Agreement or by CTMotherwise, whether or not the privileged information Income Tax Information is in the possession of or under the control of IDT members of the CBS Group or CTMthe New Viacom Group.
(c) The Parties Subject to the restrictions of this Section 8.8, New Viacom and CBS agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, with respect to all shared privileges and all privileges not allocated pursuant to the terms of Section 10.05(b). All privileges relating Sections 8.8(a) or (b) and which relate to any claims, proceedings, litigation, disputes, or other matters which involve the members of both IDT the CBS Group and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among themthe New Viacom Group.
(d) No Party Each party hereto shall ensure that no member of its respective Group may waive any privilege which could be asserted under any applicable Law, and in which any the other Party party hereto has a shared privilege, without the consent of the other Partyparty, which consent shall not be unreasonably withheld or delayed or as provided in subsections paragraph (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation claim, demand or Action or other dispute between or among any the members of the PartiesNew Viacom Group, or any on the one hand, and the members of their respective Groupsthe CBS Group, on the other hand, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Partyparty; provided, however, that such waiver of a shared privilege shall be effective only as to the use of information Information with respect to the litigation claim, demand or dispute Action or other between the relevant Parties and/or the applicable members of their respective Groupsthe New Viacom Group, on the one hand, and the members of the CBS Group, on the other hand, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties or members of their Group the New Viacom Group, on the one hand, and the members of the CBS Group, on the other hand, regarding whether a privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Income Tax Information subject to a shared privilege or as to which the other Party party or a Subsidiary thereof has the sole right hereunder to assert a privilege, or if either Party party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls call for the production or disclosure of such privileged informationInformation, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 8.8 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Records and other Income Tax Information and each party’s retention of Records and other information which may include privileged Information of the other pursuant to this Agreement is made in reliance on the agreement of IDT CBS and CTM New Viacom, as set forth in Section 10.04 8.2 and this Section 10.058.8, to maintain the confidentiality of privileged information Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to Information being granted pursuant to Sections 8.3 and 8.4 hereof, the agreement to provide witnesses pursuant to Section 8.7 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by this Agreement, and the transfer of privileged Information between and among the parties and their respective 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.
Appears in 1 contract
Sources: Tax Matters Agreement (Viacom Inc)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group InfoCure Group, and the CTM members of the PracticeWorks Group, and that each of the members of the IDT InfoCure Group and each of the CTM members of the PracticeWorks Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be . Except as otherwise specifically provided following in the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With Tax Disaffiliation Agreement with respect to such post-separation servicestax matters, to allocate the interests of each party in the information as to which any party is entitled to assert a privilege, the Parties parties agree as follows:
(ia) IDT InfoCure shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT InfoCure Business, whether or not the privileged information is in the possession of or under the control of IDT InfoCure or CTMPracticeWorks. IDT InfoCure shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT InfoCure Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTInfoCure, whether or not the privileged information is in the possession of or under the control of IDT InfoCure or CTM; andPracticeWorks.
(iib) CTM PracticeWorks shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM PracticeWorks Business, whether or not the privileged information is in the possession of or under the control of IDT InfoCure or CTMPracticeWorks. CTM PracticeWorks shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Assumed Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMPracticeWorks, whether or not the privileged information is in the possession of PracticeWorks or under the control of IDT InfoCure or CTMPracticeWorks.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.056.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 6.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT InfoCure and CTM PracticeWorks in respect of which both Parties such parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Law, and in which any other Party party hereto has a shared privilegeprivileged, without the consent of the other Partyparty, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any litigation with Third Parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesThird Parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 6.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT InfoCure and CTM PracticeWorks, as set forth in Section 10.04 Sections 6.4 and this Section 10.056.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 6.1 and 6.2 hereof, the agreement to provide witnesses and individuals pursuant to Section 9.6 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.3 hereof, and the transfer of privileged information between and among the parties and their respective 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.
Appears in 1 contract
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group InfoCure Group, and the CTM members of the PracticeWorks Group, and that each of the members of the IDT InfoCure Group and each of the CTM members of the PracticeWorks Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be . Except as otherwise specifically provided following in the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With Tax Disaffiliation Agreement with respect to such post-separation servicestax matters, to allocate the interests of each party hereto in the information as to which any party is entitled to assert a privilege, the Parties parties agree as follows:
(ia) IDT InfoCure shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT InfoCure Business, whether or not the privileged information is in the possession of or under the control of IDT InfoCure or CTMPracticeWorks. IDT InfoCure shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT InfoCure Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTInfoCure, whether or not the privileged information is in the possession of or under the control of IDT InfoCure or CTM; andPracticeWorks.
(iib) CTM PracticeWorks shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM PracticeWorks Business, whether or not the privileged information is in the possession of or under the control of IDT InfoCure or CTMPracticeWorks. CTM PracticeWorks shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Assumed Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMPracticeWorks, whether or not the privileged information is in the possession of PracticeWorks or under the control of IDT InfoCure or CTMPracticeWorks.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.056.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 6.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT InfoCure and CTM PracticeWorks in respect of which both Parties such parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Law, and in which any other Party party hereto has a shared privilegeprivileged, without the consent of the other Partyparty, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any litigation with Third Parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesThird Parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party hereto agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 6.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT InfoCure and CTM PracticeWorks, as set forth in Section 10.04 Sections 6.4 and this Section 10.056.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 6.1 and 6.2 hereof, the agreement to provide witnesses and individuals pursuant to Section 9.6 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.3 hereof, and the transfer of privileged information between and among the parties and their respective 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.
Appears in 1 contract
Privileged Matters. (a) The Parties Franchising and Choice recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of both the members of the IDT Real Estate Group and the CTM Group, Franchising Group and that each of both the members of the IDT Real Estate Group and the CTM Franchising Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following Privileges. To allocate the Effective Time which will be rendered solely for interests of each party in the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(ia) IDT Choice shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the IDT BusinessReal Estate Group, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Choice or CTMFranchising. IDT Choice shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information that relates solely to the subject matter of any claims constituting IDT Real Estate Group Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTChoice, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Choice or CTM; andFranchising.
(iib) CTM Franchising shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the CTM BusinessFranchising Group, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Choice or CTMFranchising. CTM Franchising shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information that Privileged Information which relates solely to the subject matter of any claims constituting CTM Franchising Group Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMFranchising, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Choice or CTMFranchising.
(c) The Parties Franchising and Choice agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.07, with respect to all privileges Privileges not allocated pursuant to the terms of Section 10.05(bSections 7.07(a) and (b). All privileges Privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT Franchising and CTM Choice or in respect of which both Parties Franchising and Choice retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among themPrivilege.
(d) No Party party may waive any privilege Privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party has a shared privilegePrivilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after written notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any a member of the Parties, or any members Real Estate Group and a member of their respective Groupsthe Franchising Group, either such Party party may waive a privilege Privilege in which the other Party or member of such other Party’s Group party has a shared privilegePrivilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege Privilege shall be effective only as to the use of information Information with respect to the litigation or dispute between the relevant Parties and/or Real Estate Group and the applicable members of their respective GroupsFranchising Group, and shall not operate as a waiver of the shared privilege Privilege with respect to third third-parties.
(f) If a dispute arises between the Parties or members of their Group parties regarding whether a privilege Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege Privilege or as to which the other Party party has the sole right hereunder to assert a privilegePrivilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged informationPrivileged Information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 7.07 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all the Franchising Books and Records and the Choice Books and Records and other Information pursuant to this Agreement between Choice and its Subsidiaries and Franchising and its Subsidiaries is made in reliance on the agreement of IDT Franchising and CTM Choice, as set forth in Section 10.04 Sections 7.06 and this Section 10.057.07, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesPrivileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.01 and 7.02 hereof, the agreement to provide witnesses and individuals pursuant to Section 7.03 hereof and the transfer of Privileged Information between Choice and its Subsidiaries and Franchising and its Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any privilege Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 1 contract
Sources: Distribution Agreement (Choice Hotels Franchising Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional To allocate the interests of each party in the Information as to which any party is entitled to assert a privilege in connection with products or services that have been and will be produced or provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group EATC UT Entities and the CTM GroupEATC NV Entities, and that each whether or not such a privilege exists or the existence of the members of the IDT Group and the CTM Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
is in dispute (b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTMcollectively, as the case may be. With respect to such post-separation services“Common Privileges”), the Parties parties hereto agree as follows:
(ia) IDT EATC UT shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to the IDT EATC UT Business and, subject to Section 5.7.(c), not to the EATC NV Business, whether or not the privileged information Information is in the possession of or under the control of IDT the EATC UT Entities or CTMthe EATC NV Entities. IDT shall EATC UT also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM; and
(ii) CTM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to the CTM Businessany pending or future Action that is, or which EATC UT reasonably anticipates may become, a liability and that is not also, or that EATC UT reasonably anticipates will not become, a EATC NV Liability, whether or not the privileged information Information is in the possession of or under the control of IDT the EATC UT Entities or CTM. CTM the EATC NV Entities.
(b) Subject to Section 5.7(c), EATC NV shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that Information which relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in EATC NV Business and not to the future, in any lawsuits or other proceedings initiated against or by CTMEATC UT Business, whether or not the privileged information Information is in the possession of or under the control of IDT the EATC UT Entities or CTMthe EATC NV Entities. EATC NV also shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates to any pending or future Action that is, or which EATC NV reasonably anticipates may become, a EATC NV Liability and that is not also, or that EATC NV reasonably anticipates will not become, a liability of EATC UT, whether or not the privileged Information is in the possession of or under the control of the EATC UT Entities or the EATC NV Entities.
(c) The Parties agree EATC UT shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates to the Separation, the Distribution or the transactions contemplated thereby, it being understood and agreed that they shall have a shared privilegethe expectation and intention as between EATC UT and EATC NV with respect to any communications between advisors to EATC UT and EATC NV occurring up to and including the Effective Time in connection with the Separation, with equal right the Distribution and such transactions are that the privilege and the expectation of client confidence belong exclusively to assert or waive, subject EATC UT.
(d) Subject to the restrictions in this Section 10.055.7, with respect EATC UT and EATC NV agree that they shall have equal right to assert all privileges Common Privileges not allocated pursuant to the terms of Section 10.05(b5.7.(a). All privileges relating , (b) or (c) (“Shared Privileges”) with respect to any claims, proceedings, litigation, disputes, Information as to which the EATC UT Entities or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to the EATC NV Entities may assert a shared privilege among themprivilege.
(de) No Party Each party hereto shall ensure that no member of its Group may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilegeShared Privilege, without the written consent of the other Party, party which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b)delayed.
(ef) In the event of any litigation an Action between one or dispute between or among any more of the PartiesEATC NV Entities, on the one hand, and one or any members more of their respective Groupsthe EATC UT Entities, either such Party may waive a privilege in which on the other Party or member of hand, each such other Party’s Group has party shall have the right to use any Information that may be subject to a shared privilegeShared Privilege, without obtaining the consent of the other Party; providedparty, it being understood and agreed that such waiver of a shared privilege shall be effective only as to the use of information Information with respect to the litigation Action or other dispute between the relevant Parties and/or EATC NV Entities, on the applicable members of their respective Groupsone hand, and the EATC UT Entities, on the other hand, shall not operate as or be used by either party as a basis for asserting a waiver of the shared privilege such Shared Privilege with respect to third partiesThird Parties.
(fg) If a dispute arises between any EATC NV Entity, on the Parties or members of their Group one hand, and any EATC UT Entity, on the other hand, regarding whether a privilege Shared Privilege should be waived to protect or advance the interest of either Partyparty, each Party party hereto agrees that it shall negotiate in good faith, shall Good Faith and endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interestsparty.
(gh) Upon receipt by either Party party hereto or by any member of its Group of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege Shared Privilege or as to which the other Party party or a member of such other party’s Group has the sole right hereunder to assert a privilege, or if either Party party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls call for the production or disclosure of such privileged informationInformation, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they any member of its Group may have under this Section 10.05 5.7 or otherwise to prevent the production or disclosure of such privileged informationInformation. Each party shall bear its own expenses in connection with any such request.
(hi) The transfer of all Records and other Information and each party’s retention of Records and other Information which may include privileged Information of the other pursuant to this Agreement is made in reliance on the agreement of IDT EATC UT and CTM EATC NV, as set forth in Section 10.04 and this Section 10.05, Article V to maintain the confidentiality of privileged information the Confidential Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement The access to Information being granted and the agreement to provide witnesses herein, the furnishing of notices and documents and other cooperative efforts contemplated hereby, and the transfer of privileged Information between and among the parties hereto and members of their respective Groups pursuant hereto 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: Asset Transfer and Dividend Distribution Agreement (Energy Alliance Technology Corp)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT RemainCo Group and the CTM members of the SpinCo Group, and that each of the members of the IDT RemainCo Group and each of the CTM members of the SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT The Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which Privileged Information that relates solely exclusively to the IDT BusinessCGRP Business (other than with respect to Liabilities as to which SpinCo is required to provide indemnification under ARTICLE V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. IDT The Company shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information any Privileged Information that relates solely exclusively to the subject matter of any claims constituting IDT RemainCo Liabilities, or other Liabilities as to which it is required to provide indemnification under ARTICLE V, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the RemainCo Group or CTM; andthe SpinCo Group.
(iib) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Privileged Information which relates solely exclusively to the CTM BusinessTherapeutics Business (other than with respect to matters or claims that are RemainCo Liabilities or other Liabilities as to which the Company is required to provide indemnification under ARTICLE V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information that any Privileged Information which relates solely to the subject matter of any claims constituting CTM SpinCo Liabilities, or other Liabilities as to which it is required to provide indemnification under ARTICLE V, now pending or which may be asserted in the future, in any lawsuits or other proceedings Proceedings initiated against or by CTMSpinCo, whether or not the privileged information Privileged Information is in the possession of SpinCo or under the control of IDT any member of the RemainCo Group or CTMthe SpinCo Group.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.056.6, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b6.6(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could may be asserted under any applicable Law, and in which any the other Party has a shared privilege, without the written consent of the other Party, which shall such consent not to be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third Party Claims or as provided in subsections (e) or (fSection 6.6(e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, or any members of their the respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information Privileged Information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their the respective Groups, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third Party Claims.
(f) If a dispute arises between or among the Parties or any members of their Group the respective Groups regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall (i) negotiate in good faith, shall (ii) endeavor to minimize any prejudice to the rights of the other Party, and shall (iii) not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group the respective Groups of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests which arguably calls for request that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) business days following the receipt of such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 6.6 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement agreements of IDT the Company and CTM SpinCo, as set forth in Section 10.04 6.2, Section 6.3, Section 6.4, Section 6.5 and this Section 10.056.6, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Section 6.1, Section 6.2, Section 6.3 and Section 6.4 hereof, the agreement to provide witnesses and individuals pursuant to Section 6.2 and Section 6.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 hereof, and the transfer of Privileged Information between and among the Parties and their respective Subsidiaries and Representatives 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.
(i) Parent acknowledges that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ Lord LLP and ▇▇▇▇▇▇ and Calder (“Prior Company Counsel”) have, on or prior to the Effective Time, represented one or more of the Parties and their Subsidiaries and other Affiliates, and their respective officers, employees and directors (each such Person, other than the RemainCo Group, a “Designated Person”) in one or more matters relating to this Agreement (including any matter that may be related to a litigation, claim or dispute arising under or related to this Agreement) (each, an “Existing Representation”), and that, in the event of any post-Closing matters (x) relating to this Agreement (including any matter that may be related to a litigation, claim or dispute arising under or related to this Agreement) and (y) in which Parent or any of its Affiliates (including the RemainCo Group), on the one hand, and one or more Designated Persons, on the other hand, are or may be adverse to each other (each, a “Post-Closing Matter”), the Designated Persons reasonably anticipate that Prior Company Counsel will represent them in connection -56- with such matters. Accordingly, each of Parent and the Company hereby (i) waives and shall not assert, and agrees after the Effective Time to cause its Affiliates to waive and to not assert, any conflict of interest arising out of or relating to the representation by one or more Prior Company Counsel of one or more Designated Persons in connection with one or more Post-Closing Matters (the “Post-Closing Representation”) and (ii) agrees that, in the event that a Post-Closing Matter arises, Prior Company Counsel may represent one or more Designated Persons in such Post-Closing Matter even though the interests of such Person(s) may be directly adverse to Parent or any of its Affiliates (including the RemainCo Group), and even though Prior Company Counsel may (A) have represented the RemainCo Group in a matter substantially related to such dispute or (B) be currently representing the RemainCo Group. Without limiting the foregoing, each of Parent and the Company (on behalf of itself and its Affiliates) consents to the disclosure by Prior Company Counsel, in connection with one or more Post-Closing Representations, to the Designated Persons of any information substantially related to such Post-Closing Representations learned by Prior Company Counsel in the course of one or more Existing Representations, whether or not such information is subject to the attorney-client privilege of the RemainCo Group or Prior Company Counsel’s duty of confidentiality as to the RemainCo Group and whether or not such disclosure is made before or after the Effective Time.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT NL Group and each of the CTM members of the Kronos Group, and that each of the members of the IDT NL Group and each of the CTM members of the Kronos Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be law. Except as otherwise specifically provided following in the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With Tax Sharing Agreement with respect to such post-separation servicestax matters, to allocate the interests of each party in the information as to which any party is entitled to assert a privilege, the Parties parties agree as follows:
(ia) IDT NL shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which that relates solely to the IDT NL Business, whether or not the privileged information is in the possession of or under the control of IDT NL or CTMKronos. IDT NL shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, any NL Liability now pending or which that may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by IDTNL, whether or not the privileged information is in the possession of or under the control of IDT NL or CTM; andKronos.
(iib) CTM Kronos shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which that relates solely to the CTM Kronos Business, whether or not the privileged information is in the possession of or under the control of IDT NL or CTMKronos. CTM Kronos shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Kronos Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by CTMKronos, whether or not the privileged information is in the possession of Kronos or under the control of IDT NL or CTMKronos.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.6, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.6(a) and (b). All privileges relating to any claimsAction, proceedings, litigation, disputes, disputes or other matters which that involve both IDT NL and CTM Kronos in respect of which both Parties such parties retain any responsibility or Liability liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claim or as provided in subsections (e) or (f) belowSection 4.6(e). Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation Action or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party, to the extent necessary in connection with such Action or dispute, may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation such Action or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents officers or employees have directors has received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information (to the extent such information is available to such party) and to assert any rights it or they may have under this Section 10.05 4.6 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information records and other information pursuant to this Agreement is made in reliance on the agreement of IDT NL and CTM Kronos, as set forth in Section 10.04 Sections 4.5 and this Section 10.054.6, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Section 4.1, the agreement to cooperate with respect to litigation pursuant to Section 4.2, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.6, and the transfer of privileged information between and among the parties and their respective 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.
(i) Any waiver of privilege granted pursuant to this Section 4.6 shall only be valid if given in writing and signed by an authorized officer of the party granting such waiver.
Appears in 1 contract
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to To allocate the Effective Time have been and will be rendered for the collective benefit interests of each of the members of the IDT Group and the CTM Group, and that each of the members of the IDT Group and the CTM Group should be deemed to be the client party with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(ia) IDT STEI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information, which relates solely to the IDT STEI Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT STEI or CTMSQRI. IDT STEI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities of the STEI Group, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by STEI, whether or not the Privileged Information is in the possession of or under the control of STEI or SQRI.
(b) SQRI shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information, which relates solely to the SQRI Business, whether or not the Privileged Information is in the possession of or under the control of STEI or SQRI. SQRI shall also be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the subject matter of any claims constituting SQRI Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Actions initiated against or by IDTSQRI, whether or not the privileged information Privileged Information is in the possession of SQRI or under the control of IDT STEI or CTM; and
(ii) CTM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM. CTM shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information is in the possession of or under the control of IDT or CTMSQRI.
(c) The Parties STEI and SQRI agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in of this Section 10.057.6, with respect to all privileges Privileges not allocated pursuant to the terms of Section 10.05(bSections 7.6(a) and (b). All privileges Privileges relating to any claims, proceedings, litigation, disputes, disputes or other matters matters, which involve both IDT STEI and CTM SQRI in respect of which both Parties STEI and SQRI retain any responsibility or Liability liability under this Agreement shall be subject to a shared privilege among themPrivilege.
(d) No Party party may waive any privilege Privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party has a shared privilegePrivilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third parties or as provided in subsections (e) or (fSection 7.6(e) below. Consent Such consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any a member of the Parties, or any members STEI Group and a member of their respective Groupsthe SQRI Group, either such Party party may waive a privilege Privilege in which the other Party or member of such other Party’s Group party has a shared privilegePrivilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege Privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or STEI Group and the applicable members of their respective GroupsSQRI Group, and shall not operate as a waiver of the shared privilege Privilege with respect to third third-parties.
(f) If a dispute arises between the Parties or members of their Group parties regarding whether a privilege Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege Privilege or as to which the other Party party has the sole right hereunder to assert a privilegePrivilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have has received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged informationPrivileged Information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 7.6 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all the SQRI Books and Records and the STEI Books and Records and other Information pursuant to this Agreement between the STEI Group and the SQRI Group is made in reliance on the agreement of IDT STEI and CTM SQRI, as set forth in Section 10.04 Sections 7.5 and 7.6 and elsewhere in this Section 10.05Agreement, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesPrivileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.1 and 7.2, the agreement to provide witnesses and individuals pursuant to Section 7.3 and the transfer of Privileged Information between the STEI Group and the SQRI Group pursuant to this Agreement shall not be deemed a waiver of any privilege Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Online Internet Network, Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group MSG Networks Group, and the CTM members of the Spinco Group, and that each of the members of the IDT Group MSG Networks Group, and each of the CTM members of the Spinco Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT MSG Networks shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessMSG Networks Business (other than with respect to Liabilities as to which Spinco is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT MSG Networks or CTMSpinco. IDT MSG Networks shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT MSG Networks Liabilities (including Retained Claims Liabilities), or other Liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT MSG Networks or CTM; andSpinco.
(iib) CTM Spinco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessSpinco Business (other than with respect to matters or claims that are Retained Claims Liabilities or other Liabilities as to which MSG Networks is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT MSG Networks or CTMSpinco. CTM Spinco shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Spinco Liabilities, or other liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMSpinco, whether or not the privileged information is in the possession of Spinco or under the control of IDT MSG Networks or CTM.Spinco
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilege, without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; provided, provided , however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT MSG Networks and CTM Spinco, as set forth in Section 10.04 Sections 4.2, 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 4.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (Madison Square Garden Entertainment Corp.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Parent Group and the CTM GroupSpinco, and that each of the members of the IDT Parent Group and the CTM Group Spinco should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT Parent or CTMSpinco, as the case may be. With respect to such post-separation services, the Parties agree agrees as follows:
(i) IDT Parent shall be entitled, in perpetuity, to control Control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Parent Business, whether or not the privileged information is in the possession of or under the control Control of IDT Parent or CTMSpinco. IDT Parent shall also be entitled, in perpetuity, to control Control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims Claims constituting IDT Parent Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTParent, whether or not the privileged information is in the possession of or under the control Control of IDT Parent or CTMSpinco; and
(ii) CTM Spinco shall be entitled, in perpetuity, to control Control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Spinco Business, whether or not the privileged information is in the possession of or under the control Control of IDT Parent or CTMSpinco. CTM Spinco shall also be entitled, in perpetuity, to control Control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims Claims constituting CTM Spinco Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM▇▇▇▇▇▇, whether or not the privileged information is in the possession of or under the control Control of IDT Parent or CTMSpinco.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.059.2, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b9.2(b). All privileges relating to any claimsClaims, proceedings, litigation, disputes, or other matters which involve both IDT Parent and CTM Spinco in respect of which both Parties retain any responsibility or Liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made upon the Party requesting such consent within twenty (20) days after notice upon s given to the other Party requesting such consentParty. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party party if that privilege is a shared privilege or has been allocated to the other Party party pursuant to Section 10.05(b9.2(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsGroup’s, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties or members of their Group respective subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its Group’s subsidiaries’ current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 9.2 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT Parent and CTM Spinco as set forth in Section 10.04 9.1 and this Section 10.059.2, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall 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 and Plan of Distribution (Tectonic Financial, Inc.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided on and prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group ▇▇▇▇▇▇▇ and the CTM Group▇▇▇▇▇▇▇▇ and their subsidiaries, and that each of the members of the IDT Group and the CTM Group foregoing should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following law. To allocate the Effective Time interests of each party in the Information as to which will be rendered solely for the benefit of IDT any party or CTM, as the case may be. With respect any its subsidiaries is entitled to such post-separation servicesassert a privilege, the Parties parties agree as follows:
(ia) IDT ▇▇▇▇▇▇▇ shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary or the IDT Businessbusiness of ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary, whether or not the privileged information Information is in the possession of or under the control of IDT ▇▇▇▇▇▇▇ or CTM▇▇▇▇▇▇▇▇ or any of their subsidiaries. IDT ▇▇▇▇▇▇▇ shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending arising out of any item set forth on Schedule B or any claims which may be asserted in the future, future in any lawsuits or other proceedings (not involving Hussmann or any Hussmann Subsidiary) initiated against or by IDT▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary, whether or not the privileged information Information is in the possession of or under the control of IDT ▇▇▇▇▇▇▇ or CTM; and▇▇▇▇▇▇▇▇ or any of their subsidiaries.
(iib) CTM Hussmann shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to Hussmann or any Hussmann Subsidiary or the CTM Businessbusiness of Hussmann or any Hussmann Subsidiary, whether or not the privileged information Information is in the possession of or under the control of IDT ▇▇▇▇▇▇▇ or CTM▇▇▇▇▇▇▇▇ or any of their subsidiaries. CTM Hussmann shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that Information which relates solely to the subject matter of any claims constituting CTM Liabilities, now pending arising out of any item set forth on Schedule C or any claims which may be asserted in the future, future in any lawsuits or other proceedings (not involving ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary) initiated against or by CTMHussmann or any Hussmann Subsidiary, whether or not the privileged information Information is in the possession of or under the control of IDT ▇▇▇▇▇▇▇ or CTM▇▇▇▇▇▇▇▇ or any of their subsidiaries.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.056.02, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 6.02(a) and (b); provided, however, that no party shall have a shared privilege in connection with privileged Information that does not relate to such party, any of its subsidiaries or their respective businesses. All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary and/or Hussmann or any Hussmann Subsidiary in respect of which both Parties retain each party retains any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed or except to the extent reasonably required in connection with any litigation as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 calendar days after written notice upon from the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among the parties hereto, any party and a subsidiary of the Partiesanother party hereto, or any members a subsidiary of their respective Groupsone party hereto and a subsidiary of another party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Partyparty; provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective Groupssubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s subsidiaries' current or former directors, officers, agents or employees have has received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged informationInformation, such Party party shall promptly notify the other Party party or parties of the existence of the request and shall provide the other Party party or parties a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 6.02 or otherwise to prevent the production or disclosure of such privileged informationInformation.
(h) The transfer furnishing and delivery of all Information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM the parties, as set forth in Section 10.04 and this Section 10.055.04, to maintain the confidentiality of confidential or privileged information Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement The access to Information being granted pursuant to Section 5.01, the agreement to provide witnesses pursuant to Section 5.02, and the furnishing of notices and documents and other cooperative efforts contemplated by Article IV, 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: Distribution Agreement (Hussmann International Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Distribution Time have been and will be rendered for the collective benefit of each of the members of the IDT Company Group and the CTM Spinco Group, and that each of the members of the IDT Company Group and the CTM Spinco Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time Distribution Time, which services will be rendered solely for the benefit of IDT the Spinco Group, on the one hand, or CTMthe Company Group, on the other hand, as the case may be. With respect In furtherance of the foregoing, each of Spinco, on the one hand, and the Company and Buyer, on the other hand, shall authorize the delivery to and/or retention by the other Party of materials existing as of the Distribution Time that are necessary for such post-separation other Party to perform such services, the .
(b) The Parties agree as follows:
(i) IDT Spinco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT Spinco Business and not to the Company Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Spinco Group, on the one hand, or CTMany member of the Company Group, on the other hand. IDT Notwithstanding anything to the contrary in the foregoing, Spinco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any proposed sale, spin-off or other disposition of the Company Business or the preparation, negotiation or execution of this Agreement, the Merger Agreement, any other Transaction Document or any other transaction including or regarding the Company Business in lieu of any of the foregoing. Spinco shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Spinco Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Spinco Group, on the one hand, or CTM; andany member of the Company Group, on the other hand;
(ii) CTM The Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM Company Business and not to the Spinco Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Company Group, on the one hand, or CTMany member of the Spinco Group, on the other hand. CTM The Company shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Liabilities, Company Liabilities resulting from any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Company Group, on the one hand, or CTMany member of the Spinco Group, on the other hand; and
(iii) If the Parties do not agree as to whether certain information is Privileged Information, then such information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information 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 use the procedures set forth in Article VII to resolve any disputes as to whether any information relates solely to the Company Business, solely to the Spinco Business, or to both the Company Business and the Spinco Business.
(c) The Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All 6.8(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one (1) or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(ed) In If any Dispute arises between the event of any litigation or dispute between or among any of the Parties, Parties or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group Groups regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either PartyParty and/or any member of their respective Groups, each Party agrees that it shall shall: (i) negotiate with the other Parties in good faith, shall ; (ii) endeavor to minimize any prejudice to the rights of the other Party, Parties; and shall (iii) not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interestsParties.
(ge) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or immunity or as to which the other another Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party or Parties of the existence of the request (which notice shall be delivered to such other Party no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide the other Party or Parties a reasonable opportunity to review the information Privileged Information and to assert any rights it or they may have under this Section 10.05 6.8 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(hf) The Any furnishing of, transfer of all Information of, or access to any information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as the Parties set forth in Section 10.04 and this Section 10.05, 6.8 and Section 6.9 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and members of their respective Groups as needed 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.
(g) In connection with any matter contemplated by Section 6.7 or this Section 6.8, the Parties agree to, and to cause the applicable members of their Group to, use commercially reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 1 contract
Sources: Separation Agreement (ENVIRI Corp)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided on and prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group ▇▇▇▇▇▇▇ and the CTM Group▇▇▇▇▇▇▇▇ and their subsidiaries, and that each of the members of the IDT Group and the CTM Group foregoing should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following law. To allocate the Effective Time interests of each party in the Information as to which will be rendered solely for the benefit of IDT any party or CTM, as the case may be. With respect any its subsidiaries is entitled to such post-separation servicesassert a privilege, the Parties parties agree as follows:
(ia) IDT ▇▇▇▇▇▇▇ shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary or the IDT Businessbusiness of ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary, whether or not the privileged information Information is in the possession of or under the control of IDT ▇▇▇▇▇▇▇ or CTM▇▇▇▇▇▇▇▇ or any of their subsidiaries. IDT ▇▇▇▇▇▇▇ shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending arising out of any item set forth on SCHEDULE B or any claims which may be asserted in the future, future in any lawsuits or other proceedings (not involving Hussmann or any Hussmann Subsidiary) initiated against or by IDT▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary, whether or not the privileged information Information is in the possession of or under the control of IDT ▇▇▇▇▇▇▇ or CTM; and▇▇▇▇▇▇▇▇ or any of their subsidiaries.
(iib) CTM Hussmann shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to Hussmann or any Hussmann Subsidiary or the CTM Businessbusiness of Hussmann or any Hussmann Subsidiary, whether or not the privileged information Information is in the possession of or under the control of IDT ▇▇▇▇▇▇▇ or CTM▇▇▇▇▇▇▇▇ or any of their subsidiaries. CTM Hussmann shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that Information which relates solely to the subject matter of any claims constituting CTM Liabilities, now pending arising out of any item set forth on SCHEDULE C or any claims which may be asserted in the future, future in any lawsuits or other proceedings (not involving ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary) initiated against or by CTMHussmann or any Hussmann Subsidiary, whether or not the privileged information Information is in the possession of or under the control of IDT ▇▇▇▇▇▇▇ or CTM▇▇▇▇▇▇▇▇ or any of their subsidiaries.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05SECTION 6.02, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSECTIONS 6.02(a) and (b); PROVIDED, HOWEVER, that no party shall have a shared privilege in connection with privileged Information that does not relate to such party, any of its subsidiaries or their respective businesses. All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Subsidiary and/or Hussmann or any Hussmann Subsidiary in respect of which both Parties retain each party retains any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed or except to the extent reasonably required in connection with any litigation as provided in subsections SUBSECTION (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 calendar days after written notice upon from the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among the parties hereto, any party and a subsidiary of the Partiesanother party hereto, or any members a subsidiary of their respective Groupsone party hereto and a subsidiary of another party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Partyparty; providedPROVIDED, HOWEVER, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective Groupssubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s subsidiaries' current or former directors, officers, agents or employees have has received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged informationInformation, such Party party shall promptly notify the other Party party or parties of the existence of the request and shall provide the other Party party or parties a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 SECTION 6.02 or otherwise to prevent the production or disclosure of such privileged informationInformation.
(h) The transfer furnishing and delivery of all Information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM the parties, as set forth in Section 10.04 and this Section 10.05SECTION 5.04, to maintain the confidentiality of confidential or privileged information Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement The access to Information being granted pursuant to SECTION 5.01, the agreement to provide witnesses pursuant to SECTION 5.02, and the furnishing of notices and documents and other cooperative efforts contemplated by Article IV, 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: Distribution Agreement (Hussmann International Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Parent Group and the CTM Spinco Group, and that each of the members of the IDT Parent Group and the CTM Spinco Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT Parent or CTMSpinco, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Parent Business, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinco. IDT Parent shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Parent Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTParent, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinco; and
(ii) CTM Spinco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Spinco Business, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinco. CTM Spinco shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Spinco Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMSpinco, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinco.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.058.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b8.5(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT Parent and CTM Spinco in respect of which both Parties retain any responsibility or Liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made upon the Party requesting such consent within twenty (20) days after notice upon s given to the other Party requesting such consentParty. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party party if that privilege is a shared privilege or has been allocated to the other Party party pursuant to Section 10.05(b8.5(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsGroup’s, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties or members of their Group respective subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its Group’s subsidiaries’ current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 8.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT Parent and CTM Spinco as set forth in Section 10.04 8.4 and this Section 10.058.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall 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 and Plan of Distribution (Michigan Commerce Bancorp LTD)
Privileged Matters. (a) The Parties PEI and SpinCo recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of both the members of the IDT PEI Group and the CTM Group, SpinCo Group and that each of both the members of the IDT PEI Group and the CTM SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following Privileges. To allocate the Effective Time which will be rendered solely for interests of each party in the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(ia) IDT PEI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the IDT Retained Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT PEI or CTMSpinCo. IDT PEI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information that relates solely to the subject matter of any claims constituting IDT Retained Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTPEI, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT PEI or CTM; andSpinCo.
(iib) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the CTM SpinCo Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT PEI or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information that Privileged Information which relates solely to the subject matter of any claims constituting CTM SpinCo Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMSpinCo, whether or not the privileged information Privileged Information is in the possession of SpinCo or under the control of IDT PEI or CTMSpinCo.
(c) The Parties PEI and SpinCo agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.07, with respect to all privileges Privileges not allocated pursuant to the terms of Section 10.05(bSections 7.07(a) and (b). All privileges Privileges relating to any claims, proceedings, litigation, disputes, disputes or other matters which involve both IDT PEI and CTM SpinCo in respect of which both Parties PEI and SpinCo retain any responsibility or Liability liability under this Agreement shall be subject to a shared privilege among themPrivilege.
(d) No Party party may waive any privilege Privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party has a shared privilegePrivilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any a member of the Parties, or any members PEI Group and a member of their respective Groupsthe SpinCo Group, either such Party party may waive a privilege Privilege in which the other Party or member of such other Party’s Group party has a shared privilegePrivilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege Privilege shall be effective only as to the use of information Information with respect to the litigation or dispute between the relevant Parties and/or PEI Group and the applicable members of their respective GroupsSpinCo Group, and shall not operate as a waiver of the shared privilege Privilege with respect to third third-parties.
(f) If a dispute arises between the Parties or members of their Group parties regarding whether a privilege Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege Privilege or as to which the other Party party has the sole right hereunder to assert a privilegePrivilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged informationPrivileged Information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 7.07 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all the SpinCo Books and Records and the PEI Books and Records and other Information pursuant to this Agreement between PEI and its Subsidiaries and SpinCo and its Subsidiaries is made in reliance on the agreement of IDT PEI and CTM SpinCo, as set forth in Section 10.04 Sections 7.06 and this Section 10.057.07, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesPrivileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.01 and 7.02, the agreement to provide witnesses and individuals pursuant to Section 7.03 and the transfer of Privileged Information between PEI and its Subsidiaries and SpinCo and its Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any privilege Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 1 contract
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided on or prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group USI, and the CTM GroupLCA, and that each of the members of the IDT Group USI, and the CTM Group LCA should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following law. To allocate the Effective Time interests of each party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any party is entitled to such post-separation servicesassert a privilege, the Parties parties agree as follows:
(ia) IDT USI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessUSI Businesses, whether or not the privileged information is in the possession of or under the control of IDT USI or CTMLCA. IDT USI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT USI Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTUSI, whether or not the privileged information is in the possession of or under the control of IDT USI or CTM; andLCA.
(iib) CTM LCA shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessLCA Businesses, whether or not the privileged information is in the possession of or under the control of IDT USI or CTMLCA. CTM LCA shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM LCA Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, LCA whether or not the privileged information is in the possession of or under the control of IDT USI or CTMLCA.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT USI and CTM LCA in respect of which both Parties parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party hereto has a shared privilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party or parties of the existence of the request and shall provide the other Party party or parties a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT USI and CTM LCA, as set forth in Section 10.04 Sections 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1 and 4.2 hereof, the agreement to provide witnesses and individuals pursuant to Sections 2.8 and 3.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.3 hereof, and the transfer of privileged information between and among the parties and their respective 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.
Appears in 1 contract
Sources: Distribution Agreement (Lca Corp)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT RemainCo Group and the CTM members of the SpinCo Group, and that each of the members of the IDT RemainCo Group and each of the CTM members of the SpinCo Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT The Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which Privileged Information that relates solely primarily to the IDT Business101 Business (other than with respect to Liabilities as to which SpinCo is required to provide indemnification under ARTICLE V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. IDT The Company shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information any Privileged Information that relates solely primarily to the subject matter of any claims constituting IDT RemainCo Liabilities, or other Liabilities as to which it is required to provide indemnification under ARTICLE V, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the RemainCo Group or CTM; andthe SpinCo Group.
(iib) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Privileged Information which relates solely primarily to the CTM BusinessSpinCo Business (other than with respect to matters or claims that are RemainCo Liabilities or other Liabilities as to which the Company is required to provide indemnification under ARTICLE V), whether or not the privileged information Privileged Information is in the possession of or under the control of IDT the Company or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges privileges, immunities or other protections in connection with privileged information that any Privileged Information which relates solely to the subject matter of any claims constituting CTM SpinCo Liabilities, or other Liabilities as to which it is required to provide indemnification under ARTICLE V, now pending or which may be asserted in the future, in any lawsuits or other proceedings Proceedings initiated against or by CTMSpinCo, whether or not the privileged information Privileged Information is in the possession of SpinCo or under the control of IDT any member of the RemainCo Group or CTMthe SpinCo Group.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.056.6, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b6.6(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could may be asserted under any applicable Law, and in which any the other Party has a shared privilege, without the written consent of the other Party, which shall such consent not to be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third Party Claims or as provided in subsections (e) or (fSection 6.6(e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, or any members of their the respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information Privileged Information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their the respective Groups, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third Party Claims.
(f) If a dispute arises between or among the Parties or any members of their Group the respective Groups regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall (i) negotiate in good faith, shall (ii) endeavor to minimize any prejudice to the rights of the other Party, and shall (iii) not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group the respective Groups of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests which arguably calls for request that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request (which notice shall be delivered to such other Party no later than five (5) business days following the receipt of such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 6.6 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement agreements of IDT the Company and CTM SpinCo, as set forth in Section 10.04 6.2, Section 6.3, Section 6.4, Section 6.5 and this Section 10.056.6, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Section 6.1, Section 6.2, Section 6.3 and Section 6.4 hereof, the agreement to provide witnesses and individuals pursuant to Section 6.2 and Section 6.4 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 6.4 hereof, and the transfer of Privileged Information between and among the Parties and their respective Subsidiaries and Representatives 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.
(i) Parent acknowledges that P▇▇▇, W▇▇▇▇, R▇▇▇▇▇▇, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP (“Prior Company Counsel”) have, on or prior to the Effective Time, represented one or more of the Parties and their Subsidiaries and other Affiliates, and their respective officers, employees and directors (each such Person, other than the RemainCo Group, a “Designated Person”) in one or more matters relating to this Agreement (including any matter that may be related to a litigation, claim or dispute arising under or related to this Agreement) (each, an “Existing Representation”), and that, in the event of any post-Closing matters (x) relating to this Agreement (including any matter that may be related to a litigation, claim or dispute arising under or related to this Agreement) and (y) in which Parent or any of its Affiliates (including the RemainCo Group), on the one hand, and one or more Designated Persons, on the other hand, are or may be adverse to each other (each, a “Post-Closing Matter”), the Designated Persons reasonably anticipate that Prior Company Counsel will represent them in connection with such matters. Accordingly, each of Parent and the Company hereby (i) waives and shall not assert, and agrees after the Effective Time to cause its Affiliates to waive and to not assert, any conflict of interest arising out of or relating to the representation by one or more Prior Company Counsel of one or more Designated Persons in connection with one or more Post-Closing Matters (the “Post-Closing Representation”) and (ii) agrees that, in the event that a Post-Closing Matter arises, Prior Company Counsel may represent one or more Designated Persons in such Post-Closing Matter even though the interests of such Person(s) may be directly adverse to Parent or any of its Affiliates (including the RemainCo Group), and even though Prior Company Counsel may (A) have represented the RemainCo Group in a matter substantially related to such dispute or (B) be currently representing the RemainCo Group. Without limiting the foregoing, each of Parent and the Company (on behalf of itself and its Affiliates) consents to the disclosure by Prior Company Counsel, in connection with one or more Post-Closing Representations, to the Designated Persons of any information substantially related to such Post-Closing Representations learned by Prior Company Counsel in the course of one or more Existing Representations, whether or not such information is subject to the attorney-client privilege of the RemainCo Group or Prior Company Counsel’s duty of confidentiality as to the RemainCo Group and whether or not such disclosure is made before or after the Effective Time.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Inhibrx, Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group Demand Media Entities and the CTM GroupRightside Entities, and that each of the members Demand Media Entities, and each of the IDT Group and the CTM Group Rightside Entities should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(ia) IDT Demand Media shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessDemand Media Business (other than with respect to Liabilities as to which Rightside is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT Demand Media, Rightside or CTMany other Entity. IDT Demand Media shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Demand Media Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT Demand Media, Rightside or CTM; andany other Entity.
(iib) CTM Rightside shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessRightside Business (other than with respect to Liabilities as to which Demand Media is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT Demand Media, Rightside or CTMany other Entity. CTM Rightside shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Rightside Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMRightside, whether or not the privileged information is in the possession of or under the control of IDT Demand Media, Rightside or CTMany other Entity.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 7.5(a) and 7.5(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 7.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Demand Media and CTM Rightside, as set forth in Section 10.04 Sections 7.2, 7.4, and this Section 10.057.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwise.The access to information being granted pursuant to Sections 7.1, 7.2, and 7.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 7.2 and
Appears in 1 contract
Sources: Separation and Distribution Agreement (Rightside Group, Ltd.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group PDL Entities and the CTM GroupLENSAR Entities, and that each of the members PDL Entities, and each of the IDT Group and the CTM Group LENSAR Entities should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following . To allocate the Effective Time interests of each Party in the information as to which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect any Party is entitled to such post-separation servicesassert a privilege, the Parties agree as follows:
(i) IDT a. PDL shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessPDL Business (other than with respect to Liabilities as to which LENSAR is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT PDL, LENSAR or CTMany other Entity. IDT PDL shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT PDL Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT PDL, LENSAR or CTM; andany other Entity.
(ii) CTM b. LENSAR shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessLENSAR Business (other than with respect to Liabilities as to which PDL is required to provide indemnification under Article V or Article VI), whether or not the privileged information is in the possession of or under the control of IDT PDL, LENSAR or CTMany other Entity. CTM LENSAR shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM LENSAR Liabilities, or other Liabilities as to which it is required to provide indemnification under Article V or Article VI, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMLENSAR, whether or not the privileged information is in the possession of or under the control of IDT PDL, LENSAR or CTMany other Entity.
(c) c. The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 7.5(a) and 7.5(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) d. No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) e. In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) f. If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) g. Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 7.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) h. The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT PDL and CTM LENSAR, as set forth in Section 10.04 Sections 7.1(a), 7.4, and this Section 10.057.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.1, 7.1(a), and 7.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 7.1(a) and 7.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 7.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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 and Distribution Agreement (PDL Biopharma, Inc.)
Privileged Matters. (a) The Solely for purposes of asserting privileges which may be asserted under applicable law, and without limiting the provisions of Section 7.10: (x) the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution (whether by outside counsel, in-house counsel or other legal professionals) have been and will be rendered for the collective benefit of Parent and its Subsidiaries (in such capacity) and (y) each of the members of the IDT Parent Group and the CTM Group, and that each of the members of the IDT SpinCo Group and the CTM Group should shall be deemed to be have been the client in connection with such services with respect to such pre-separation services for periods prior to the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Distribution. The Parties recognize that legal and other professional services will be provided following the Effective Time Distribution, which services will be rendered solely for the benefit of IDT the Parent Group or CTMthe SpinCo Group, as the case may be. With respect to such post-separation services, the Parties agree as follows:.
(ib) IDT Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information which Information that relates solely to the IDT Parent Business or the Distribution and not to the operations of the SpinCo Business, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the Parent Group or CTMany member of the SpinCo Group. IDT Parent shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information Information that relates solely to the subject matter of any claims constituting IDT Parent Assets or Parent Liabilities, and not any SpinCo Assets or SpinCo Liabilities, in connection with any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the Parent Group or CTM; andany member of the SpinCo Group.
(iic) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information which Information that relates solely to the CTM Businessoperations of the SpinCo Business and not to the Parent Business or the Distribution, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Parent Group. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Assets or SpinCo Liabilities and not any Parent Assets or Parent Liabilities in connection with any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Parent Group.
(cd) The Subject to the remaining provisions of this Section 7.08, the Parties agree that they Parent shall have a shared privilegebe entitled, with equal right in perpetuity, to assert control the assertion or waive, subject to the restrictions in this Section 10.05, with respect to waiver of all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All privileges relating to 7.10 in connection with any claimsActions, proceedings, litigation, disputesor threatened or contemplated Actions, or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b)Agreement.
(e) In If any dispute arises between the event of any litigation or dispute between or among any of the Parties, Parties or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either PartyParty or any member of their 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, Party and shall the members of its Group; and (iii) not unreasonably withhold withhold, delay or condition consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(gf) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for (or of written notice that it will receive or has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of information privileged Information subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge or becomes aware that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for (or have received written notice that they will receive or have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of such privileged informationInformation, such Party shall promptly notify the other Party of the existence of the any such subpoena, discovery or other request and shall provide the other Party a reasonable opportunity to review the information privileged Information and to assert any rights it or they may have have, under this Section 10.05 7.08 or otherwise otherwise, to prevent the production or disclosure of such privileged informationInformation; provided that if such Party is prohibited by applicable Law from 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 inform the other Party 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, under this Section 7.08 or otherwise, to prevent the production or disclosure of such privileged Information.
(hg) The Parties agree that their respective rights to any access to Information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of all privileged Information between the Parties and members of their respective Groups pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as set forth in Section 10.04 and this Section 10.05Agreement, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary 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 7.09 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 (Kyndryl Holdings, Inc.)
Privileged Matters. (a) The Except as may be otherwise provided in an Ancillary Agreement, the Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of the members of the IDT Group Cablevision Group, and the CTM members of the MSG Group, and that each of the members of the IDT Group Cablevision Group, and each of the CTM members of the MSG Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be . Except as otherwise specifically provided following in the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With Tax Disaffiliation Agreement with respect to such post-separation servicestax matters, to allocate the interests of each Party in the information as to which any Party is entitled to assert a privilege, the Parties agree as follows:
(ia) IDT Cablevision shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT BusinessCablevision Business (other than with respect to Liabilities as to which MSG is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT Cablevision or CTMMSG. IDT Cablevision shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims Claims constituting IDT Cablevision Liabilities (including Retained Claims Liabilities), or other Liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT Cablevision or CTM; andMSG.
(iib) CTM MSG shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM BusinessMSG Business (other than with respect to matters or claims that are Retained Claims Liabilities or other Liabilities as to which Cablevision is required to provide indemnification under Article III), whether or not the privileged information is in the possession of or under the control of IDT Cablevision or CTMMSG. CTM MSG shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims Claims constituting CTM MSG Liabilities, or other liabilities as to which it is required to provide indemnification under Article III, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMMSG, whether or not the privileged information is in the possession of MSG or under the control of IDT Cablevision or CTMMSG.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.054.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any the other Party has a shared privilegeprivileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, any Party and a Subsidiary of the other Party, or any members a Subsidiary of their respective Groupsone Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Party; , provided, however, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesany Third-Party Claims.
(f) If a dispute arises between or among the Parties or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for a waiver by the other Party. Each Party hereto specifically agrees that it will not withhold consent to a waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either any Party or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other another Party has the sole right hereunder to assert a privilege, or if either any Party obtains knowledge that any of its or any member of its Group’s Subsidiaries’ current or former directors, officers, agents or employees Representatives have received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 4.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT Cablevision and CTM MSG, as set forth in Section 10.04 Sections 4.2, 4.4 and this Section 10.054.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and individuals pursuant to Sections 4.2 and 4.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 4.3 hereof, and the transfer of privileged information between and among the Parties and their respective Subsidiaries, Affiliates and Representatives 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: Distribution Agreement (Madison Square Garden, Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional To allocate the interests of each Party in the Information as to which any Party is entitled to assert a privilege in connection with products or services that have been and will be produced or provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group HyperScale Entities and the CTM GroupACC Entities, and that each whether or not such a privilege exists or the existence of the members of the IDT Group and the CTM Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
is in dispute (b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTMcollectively, as the case may be. With respect to such post-separation services"Common Privileges"), the Parties parties hereto agree as follows:
(ia) IDT HyperScale shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to the IDT HyperScale Business and, subject to Section 5.8(c), not to the ACC Business, whether or not the privileged information Information is in the possession of or under the control of IDT the HyperScale Entities or CTMthe ACC Entities. IDT shall HyperScale also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM; and
(ii) CTM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information Information which relates solely to the CTM Businessany pending or future Action that is, or which HyperScale reasonably anticipates may become, a HyperScale Liability and that is not also, or that HyperScale reasonably anticipates will not become, a ACC Liability, whether or not the privileged information Information is in the possession of or under the control of IDT the HyperScale Entities or CTM. CTM the ACC Entities.
(b) Subject to Section 5.8(c), ACC shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that Information which relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in ACC Business and not to the future, in any lawsuits or other proceedings initiated against or by CTMHyperScale Business, whether or not the privileged information Information is in the possession of or under the control of IDT the HyperScale Entities or CTMthe ACC Entities. ACC also shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates to any pending or future Action that is, or which ACC reasonably anticipates may become, a ACC Liability and that is not also, or that ACC reasonably anticipates will not become, a HyperScale Liability, whether or not the privileged Information is in the possession of or under the control of the HyperScale Entities or the ACC Entities.
(c) The Parties agree HyperScale shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates to the Separation, the Distribution or the transactions contemplated thereby, it being understood and agreed that they shall have a shared privilegethe expectation and intention as between HyperScale and ACC with respect to any communications between advisors to HyperScale and ACC occurring up to and including the Effective Time in connection with the Separation, with equal right the Distribution and such transactions are that the privilege and the expectation of client confidence belong exclusively to assert or waive, subject Parent.
(d) Subject to the restrictions in this Section 10.055.8, with respect HyperScale and ACC agree that they shall have equal right to assert all privileges Common Privileges not allocated pursuant to the terms of Section 10.05(b5.8(a). All privileges relating , (b) or (c) ("Shared Privileges") with respect to any claims, proceedings, litigation, disputes, Information as to which the HyperScale Entities or other matters which involve both IDT and CTM in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to the ACC Entities may assert a shared privilege among themprivilege.
(de) No Each Party hereto shall ensure that no member of its Group may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilegeShared Privilege, without the written consent of the other Party, Party which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b)delayed.
(ef) In the event of any litigation an Action between one or dispute between or among any more of the PartiesACC Entities, on the one hand, and one or any members more of their respective Groupsthe HyperScale Entities, either on the other hand, each such Party shall have the right to use any Information that may waive be subject to a privilege in which the other Party or member of such other Party’s Group has a shared privilegeShared Privilege, without obtaining the consent of the other Party; providedparty, it being understood and agreed that such waiver of a shared privilege shall be effective only as to the use of information Information with respect to the litigation Action or other dispute between the relevant Parties and/or ACC Entities, on the applicable members of their respective Groupsone hand, and the HyperScale Entities, on the other hand, shall not operate as or be used by either Party as a basis for asserting a waiver of the shared privilege such Shared Privilege with respect to third partiesThird Parties.
(fg) If a dispute arises between any ACC Entity, on the Parties or members of their Group one hand, and any HyperScale Entity, on the other hand, regarding whether a privilege Shared Privilege should be waived to protect or advance the interest of either Partyparty, each Party hereto agrees that it shall negotiate in good faith, shall Good Faith and endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interestsparty.
(gh) Upon receipt by either Party hereto or by any member of its Group of any subpoena, discovery discovery, or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege Shared Privilege or as to which the other Party or a member of such other party's Group has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its Group’s 's current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls call for the production or disclosure of such privileged informationInformation, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information Information and to assert any rights it or they any member of its Group may have under this Section 10.05 5.8 or otherwise to prevent the production or disclosure of such privileged informationInformation. Each Party shall bear its own expenses in connection with any such request.
(hi) The transfer of all Records and other Information and each party's retention of Records and other Information, which may include privileged Information of the other pursuant to this Agreement Agreement, is made in reliance on the agreement of IDT HyperScale and CTM ACC, as set forth in Section 10.04 and this Section 10.05, Article V to maintain the confidentiality of privileged information the Confidential Information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement The access to Information is granted, and the agreement to provide witnesses herein, the furnishing of notices and documents and other cooperative efforts contemplated hereby, and the transfer of privileged Information between and among the parties hereto and members of their respective Groups pursuant hereto 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 and Distribution Agreement (American Cannabis Company, Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT MNK Group and the CTM MRI Group, and that each of the members of the IDT MNK Group and the CTM MRI Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time Time, which services will be rendered solely for the benefit of IDT the MNK Group or CTMthe MRI Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT shall MNK will be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to MNK and not to the IDT MRI Group or the MRI Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the MNK Group or CTMany member of the MRI Group;
(ii) MRI will be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates solely to the MRI Business and not to MNK, whether or not the Privileged Information is in the possession or under the control of any member of the MRI Group or any member of the MNK Group. IDT shall MRI will also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the MRI Group or CTMany member of the MNK Group; and
(iiiii) CTM shall if the Parties do not agree as to whether certain information is Privileged Information, then such information will be entitledtreated as Privileged Information, in perpetuity, and the Party that believes that such information is Privileged Information will be entitled to control the assertion or waiver of all privileges and immunities in connection with privileged any such information which unless the Parties otherwise agree. The Parties will use the procedures set forth in Article VII to resolve any disputes as to whether any information relates solely to the CTM BusinessMNK, whether or not the privileged information is in the possession of or under the control of IDT or CTM. CTM shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM LiabilitiesMRI Group or the MRI Business, now pending or which may be asserted in to both MNK, on the futureone hand, in any lawsuits and the MRI Group or the MRI Business, on the other proceedings initiated against or by CTM, whether or not the privileged information is in the possession of or under the control of IDT or CTMhand.
(c) The Subject to the remaining provisions of this Section 6.4, the Parties agree that they shall will have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All 6.4(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party.
(d) If any Dispute arises between the Parties or any members of their respective Group regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any member of their respective Group, which shall not be unreasonably withheld or delayed or as provided in subsections each Party agrees that it will (ei) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon negotiate with the other Party requesting such consent. Each Party shall use its reasonable best efforts in good faith; (ii) endeavor to preserve minimize any privilege held prejudice to the rights of the other Party; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, each Party if specifically agrees that privilege is it will not withhold its consent to the waiver of a shared privilege or has been allocated immunity for any purpose except in good faith to the other Party pursuant to Section 10.05(b)protect its own legitimate interests.
(e) In the event of any litigation adversarial Action or dispute between Dispute among MNK, Montauk USA or among any of the PartiesMRI, or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Partypursuant to Section 6.4(c); provided, provided that such waiver of a shared privilege shall will be effective only as to the use of information with respect to the litigation or dispute Action between the relevant Parties and/or the applicable members of their respective Groups, and shall will not operate as a waiver of the shared privilege with respect to third partiesany Third Party.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or immunity or as to which the other another Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall will promptly notify the other Party of the existence of the request (which Notice will be delivered to such other Party no later than five business days following the receipt of any such subpoena, discovery or other request) and shall will provide the other Party a reasonable opportunity to review the information Privileged Information and to assert any rights it or they may have under this Section 10.05 6.4 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(hg) The Any furnishing of, or access or transfer of all Information of, any information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as the Parties set forth in Section 10.04 and this Section 10.05, 6.4 and in Section 6.5 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement shall access to information, witnesses and other Persons, the furnishing of Notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and members of their respective Groups pursuant to this Agreement, will not be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwise.
(h) In connection with any matter contemplated by this Section 6.4, the Parties agree to, and to cause the applicable members of their Group to, use commercially reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 1 contract
Sources: Transaction Implementation Agreement (Montauk Renewables, Inc.)
Privileged Matters. (a) The Parties PEI and PriceSmart recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of both PEI and the members of the IDT PriceSmart Group and the CTM Group, and that each of the members of the IDT Group both PEI and the CTM PriceSmart Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following Privileges. To allocate the Effective Time which will be rendered solely for interests of each party in the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(ia) IDT PEI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the IDT Retained Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT PEI or CTMPriceSmart. IDT PEI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information that relates solely to the subject matter of any claims constituting IDT Retained Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTPEI, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT PEI or CTM; andPriceSmart.
(iib) CTM PriceSmart shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the CTM PriceSmart Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT PEI or CTMPriceSmart. CTM PriceSmart shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information that Privileged Information which relates solely to the subject matter of any claims constituting CTM PriceSmart Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMPriceSmart, whether or not the privileged information Privileged Information is in the possession of PriceSmart or under the control of IDT PEI or CTMPriceSmart.
(c) The Parties PEI and PriceSmart agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in this Section 10.057.07, with respect to all privileges Privileges not allocated pursuant to the terms of Section 10.05(bSections 7.07(a) and (b). All privileges Privileges relating to any claims, proceedings, litigation, disputes, disputes or other matters which involve both IDT PEI and CTM PriceSmart in respect of which both Parties PEI and PriceSmart retain any responsibility or Liability liability under this Agreement shall be subject to a shared privilege among themPrivilege.
(d) No Party party may waive any privilege Privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party has a shared privilegePrivilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) 20 days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any PEI and a member of the Parties, or any members of their respective GroupsPriceSmart Group, either such Party party may waive a privilege Privilege in which the other Party or member of such other Party’s Group party has a shared privilegePrivilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege Privilege shall be effective only as to the use of information Information with respect to the litigation or dispute between PEI and the relevant Parties and/or the applicable members of their respective GroupsPriceSmart Group, and shall not operate as a waiver of the shared privilege Privilege with respect to third third-parties.
(f) If a dispute arises between the Parties or members of their Group parties regarding whether a privilege Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege Privilege or as to which the other Party party has the sole right hereunder to assert a privilegePrivilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged informationPrivileged Information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 7.07 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all the PriceSmart Books and Records and the PEI Books and Records and other Information pursuant to this Agreement between PEI and the PriceSmart Group is made in reliance on the agreement of IDT PEI and CTM PriceSmart, as set forth in Section 10.04 Sections 7.06 and this Section 10.057.07, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesPrivileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 7.01 and 7.02, the agreement to provide witnesses and individuals pursuant to Section 7.03 and the transfer of Privileged Information between PEI and the PriceSmart Group pursuant to this Agreement shall not be deemed a waiver of any privilege Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 1 contract
Privileged Matters. (a) The Parties Rentrak and BlowOut recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution Date have been and will be rendered for the collective benefit of each of both the members of the IDT Rentrak Group and the CTM Group, BlowOut Group and that each of both the members of the IDT Rentrak Group and the CTM BlowOut Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following Privileges. To allocate the Effective Time which will be rendered solely for interests of each party in the benefit of IDT or CTM, as the case may be. With respect to such post-separation servicesPrivileged Information, the Parties parties agree as follows:
(ia) IDT Rentrak shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the IDT Rentrak Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Rentrak or CTMBlowOut. IDT Rentrak shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information that relates solely to the subject matter of any claims constituting IDT Rentrak Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTRentrak, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Rentrak or CTM; andBlowOut.
(iib) CTM BlowOut shall be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information Privileged Information which relates solely to the CTM BlowOut Business, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT Rentrak or CTMBlowOut. CTM BlowOut shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges Privileges in connection with privileged information that Privileged Information which relates solely to the subject matter of any claims constituting CTM BlowOut Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMBlowOut, whether or not the privileged information Privileged Information is in the possession of BlowOut or under the control of IDT Rentrak or CTMBlowOut.
(c) The Parties Rentrak and BlowOut agree that they shall have a shared privilegePrivilege, with equal right to assert or waive, subject to the restrictions in this Section 10.0510.7, with respect to all privileges Privileges not allocated pursuant to the terms of Section 10.05(bSections 10.7(a) and (b). (All privileges Privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT Rentrak and CTM BlowOut in respect of which both Parties Rentrak and BlowOut retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among themPrivilege.)
(d) No Party party may waive any privilege Privilege which could be asserted under any applicable Lawlaw, and in which any the other Party party has a shared privilegePrivilege, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed except to the extent reasonably required in connection with any litigation with third-parties (but subject to advance written notice to the other party) or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any a member of the Parties, or any members Rentrak Group and a member of their respective Groupsthe BlowOut Group, either such Party party may waive a privilege Privilege in which the other Party or member of such other Party’s Group party has a shared privilegePrivilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege Privilege shall be effective only as to the use of information Information with respect to the litigation or dispute between the relevant Parties and/or Rentrak Group and the applicable members of their respective GroupsBlowOut Group, and shall not operate as a waiver of the shared privilege Privilege with respect to third third-parties.
(f) If a dispute arises between the Parties or members of their Group parties regarding whether a privilege Privilege should be waived to protect or advance the interest of either Partyparty, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information Information subject to a shared privilege Privilege or as to which the other Party party has the sole right hereunder to assert a privilegePrivilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged informationPrivileged Information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information Information and to assert any rights it or they may have under this Section 10.05 10.7 or otherwise to prevent the production or disclosure of such privileged informationPrivileged Information.
(h) The transfer of all the BlowOut Books and Records and the Rentrak Books and Records and other Information pursuant to this Agreement between Rentrak and its Subsidiaries and BlowOut and its Subsidiaries, is made in reliance on the agreement of IDT Rentrak and CTM BlowOut, as set forth in Section 10.04 Sections 10.6 and this Section 10.0510.7, to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesPrivileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 10.1 and 10.2 hereof, the agreement to provide witnesses and individuals pursuant to Section 10.3 hereof and the transfer of Privileged Information between Rentrak and its Subsidiaries and BlowOut and its Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any privilege Privilege that has been or may be asserted under this Agreement or otherwise.
Appears in 1 contract
Sources: Reorganization and Distribution Agreement (Rentrak Corp)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group and the CTM Genie Group, and that each of the members of the IDT Group and the CTM Genie Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTMGenie, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Business, whether or not the privileged information is in the possession of or under the control of IDT or CTMGenie. IDT shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTMGenie; and
(ii) CTM Genie shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Genie Business, whether or not the privileged information is in the possession of or under the control of IDT or CTMGenie. CTM Genie shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Genie Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMGenie, whether or not the privileged information is in the possession of or under the control of IDT or CTMGenie.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT and CTM Genie in respect of which both Parties retain any responsibility or Liability under this Agreement shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM Genie as set forth in Section 10.04 and this Section 10.05, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall 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 and Distribution Agreement (Genie Energy Ltd.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to To allocate the Effective Time have been and will be rendered for the collective benefit interests of each of the members of the IDT Group and the CTM Group, and that each of the members of the IDT Group and the CTM Group should be deemed to be the client party with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal privileged information, Cardium and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT or CTM, as the case may be. With respect to such post-separation services, the Parties Angionetics agree as follows:
(ia) IDT Cardium shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which that relates solely to the IDT Businessbusiness of Cardium, whether or not the privileged information is in the possession of or under the control of IDT Cardium or CTMAngionetics. IDT Cardium shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilitiesfor which Cardium has the responsibility to indemnify Angionetics hereunder, now pending or which may be asserted in the future, in any lawsuits investigations, administrative, civil, or criminal or other proceedings initiated against or by IDTCardium, whether or not the privileged information is in the possession of or under the control of IDT Cardium or CTM; andAngionetics.
(iib) CTM Angionetics shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Business, business of Angionetics whether or not the privileged information is in the possession of or under the control of IDT Cardium or CTMAngionetics. CTM Angionetics shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM Liabilitiesfor which Angionetics has the responsibility to indemnify Cardium hereunder, now pending or which may be asserted in the future, in any lawsuits any investigations, administrative, civil, or criminal or other proceedings initiated against or by CTM, Angionetics whether or not the privileged information is in the possession of or under the control of IDT Cardium or CTMAngionetics.
(c) The Parties Cardium and Angionetics agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in of this Section 10.05, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 10(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, disputes or other matters which involve both IDT Cardium and CTM Angionetics in respect of which both Parties Cardium and Angionetics retain any responsibility or Liability liability under this Agreement shall be subject to a shared privilege among themprivilege.
(d) No Party In the case of information that is subject to a shared privilege, no party may waive any privilege which that could be asserted under any applicable Law, and in which any other Party has a shared privilegelaw, without the consent of the other Partyparty, which shall not be unreasonably withheld or delayed or as provided except to the extent reasonably required in subsections (e) or (f) belowconnection with any litigation with third parties. Consent Such consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by Notwithstanding the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In foregoing, in the event of any litigation or dispute between or among any of Cardium and Angionetics regarding the Parties, or any members of their respective Groupssubject matter hereof, either such Party party may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that any such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective Groups, parties and shall not operate as a waiver of the shared privilege with respect to third parties.
(fe) If a dispute arises between the Parties or members of their Group parties regarding the subject matter hereof whether a privilege should be waived to protect or advance the interest of either Partyparty, each Party agrees that it party shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparty, and shall not unreasonably withhold consent to any request for waiver by the other Partyparty. Each Party specifically agrees that it Neither party will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(gf) Upon receipt by either Party or by any member of its Group party of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party party has the sole right hereunder to assert a privilege, or if either Party a party obtains knowledge that any of its or any member of its Group’s current or former directors, officers, agents or employees have has received any subpoena, discovery or other requests request which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 10 or otherwise to prevent the production or disclosure of such privileged information.
(hg) The transfer of all Information information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as set forth in Section 10.04 and this Section 10.05, to maintain parties maintaining the confidentiality of privileged information and to assert and maintain all applicable privilegesprivileges hereunder. Nothing provided for herein or in any Ancillary Agreement The access to information being granted, the agreement to provide witnesses and individuals and the transfer of privileged information between the parties hereunder 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: Contribution Agreement (Taxus Cardium Pharmaceuticals Group Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Company Group and the CTM CORE Group, and that each of the members of the IDT Company Group and the CTM CORE Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time Time, which services will be rendered solely for the benefit of IDT the Company Group or CTMthe CORE Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT the Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the IDT BusinessRetained Assets and not to the Transferred Assets, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Company Group or CTMany member of the CORE Group. IDT The Company shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting IDT Retained Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the Company Group or CTMany member of the CORE Group; and
(ii) CTM CORE and CORE Minerals shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information which any Privileged Information that relates solely to the CTM BusinessTransferred Assets and not to the Retained Assets, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the CORE Group or CTMany member of the Company Group. CTM CORE and CORE Minerals shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged information any Privileged Information that relates solely to the subject matter of any claims constituting CTM Assumed Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Privileged Information is in the possession of or under the control of IDT any member of the CORE Group or CTMany member of the Company Group.
(iii) If the Parties do not agree as to whether certain information is Privileged Information, then such information shall be treated as Privileged Information, and the Party that believes that such information is Privileged Information 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 use the procedures set forth in Article VIII to resolve any disputes as to whether any information relates solely to the Retained Assets, solely to the Transferred Assets, or to both the Retained Assets and the Transferred Assets.
(c) The Subject to the remaining provisions of this Section 5.8, the Parties agree that they shall have a shared privilege, with equal right to assert privilege or waive, subject to the restrictions in this Section 10.05, immunity with respect to all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All 5.8(b) and all privileges and immunities relating to any claims, proceedings, litigation, disputes, Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject to a Agreement, and that no such shared privilege among them.
(d) No or immunity may be waived by either Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party.
(d) If any dispute arises between the Parties or any members of their respective Group regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any member of their respective Group, which each Party agrees that it shall not be unreasonably withheld or delayed or as provided in subsections (ei) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon negotiate with the other Party requesting such consent. Each Party shall use its reasonable best efforts in good faith; (ii) endeavor to preserve minimize any privilege held prejudice to the rights of the other Party; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, each Party if specifically agrees that privilege is it shall not withhold its consent to the waiver of a shared privilege or has been allocated immunity for any purpose except in good faith to the other Party pursuant to Section 10.05(b)protect its own legitimate interests.
(e) In the event of any litigation adversarial Action or dispute between the Company and CORE or among any of the PartiesCORE Minerals or, or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining the consent of the other Partypursuant to Section 5.8(c); provided, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation or dispute Action between the relevant 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 partiesany Third Party.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for that may reasonably be expected to result in the production or disclosure of information Privileged Information subject to a shared privilege or immunity or as to which the other another Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for that may reasonably be expected to result in the production or disclosure of such privileged informationPrivileged Information, such Party shall promptly notify the other Party of the existence of the request within five (5) business days following the receipt of any such subpoena, discovery or other request and shall provide the other Party a reasonable opportunity to review the information Privileged Information and to assert any rights it or they may have under this Section 10.05 5.8 or otherwise otherwise, to prevent the production or disclosure of such privileged informationPrivileged Information.
(hg) The Any furnishing of, or access or transfer of all Information of, any information pursuant to this Agreement is made in reliance on the agreement of IDT the Company and CTM as CORE Minerals set forth in Section 10.04 and this Section 10.05, 5.8 and in Section 5.9 to maintain the confidentiality of privileged information Privileged Information and to assert and maintain all applicable privilegesprivileges and immunities. Nothing provided for herein or in The Parties agree that their respective rights to any Ancillary Agreement access to information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of Privileged Information between the Parties and 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.
(h) In connection with any matter contemplated by Section 5.7 or this Section 5.8, the Parties agree to, and to cause the applicable members of their Group to, use commercially reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements where necessary or useful for this purpose.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Contango ORE, Inc.)
Privileged Matters. (a) The Parties parties hereto recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Group RFB Group, and each of the CTM members of the SpinCo Group, and that each of the members of the IDT Group RFB Group, and each of the CTM Group members of the SpinCo Group, should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be . Except as otherwise specifically provided following in the Effective Time which will be rendered solely for the benefit of IDT or CTMTax Disaffiliation Agreement, as the case may be. With if any, with respect to such post-separation servicestax matters, to allocate the interests of each party in the information as to which any party is entitled to assert a privilege, the Parties parties agree as follows:
(ia) IDT RFB shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT RFB Business, whether or not the privileged information is in the possession of or under the control of IDT RFB or CTMSpinCo. IDT RFB shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT RFB Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by IDTRFB, whether or not the privileged information is in the possession of or under the control of IDT RFB or CTM; andSpinCo.
(iib) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Businessbusiness of SpinCo, whether or not the privileged information is in the possession of or under the control of IDT RFB or CTMSpinCo. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that which relates solely to the subject matter of any claims constituting CTM SpinCo Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings Action initiated against or by CTMSpinCo, whether or not the privileged information is in the possession of SpinCo or under the control of IDT RFB or CTMSpinCo.
(c) The Parties parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.053.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(bSections 3.5(a) and (b). All privileges relating to any claimsAction, proceedings, litigation, disputes, disputes or other matters which involve both IDT RFB and CTM SpinCo in respect of which both Parties such parties retain any responsibility or Liability liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party party hereto may waive any privilege which could be asserted under any applicable Law, and in which any other Party party hereto has a shared privilege, without the consent of the other Partyparty, which consent shall not be unreasonably withheld or delayed delayed, except to the extent reasonably required in connection with any Action with Third Parties or as provided in subsections subsection (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation Action or dispute between or among any of the Partiesparties hereto, any party and a Subsidiary of another party hereto, or any members a Subsidiary of their respective Groupsone party hereto and a Subsidiary of another party hereto, either such Party party, to the extent necessary in connection with such Action or dispute, may waive a privilege in which the other Party or member of such other Party’s Group party has a shared privilege, without obtaining the consent of the other Party; providedparty, provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the litigation such Action or dispute between the relevant Parties parties and/or the applicable members of their respective GroupsSubsidiaries, and shall not operate as a waiver of the shared privilege with respect to third partiesThird Parties.
(f) If a dispute arises between or among the Parties parties hereto or members of their Group respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Partyany party, each Party party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Partyparties, and shall not unreasonably withhold consent to any request for waiver by the other Partyanother party. Each Party party hereto specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party any party hereto or by any member of its Group Subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party another party has the sole right hereunder to assert a privilege, or if either Party any party obtains knowledge that any of its or any member of its Group’s Subsidiaries' current or former directors, officers, agents or employees have representatives has received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party party shall promptly notify the other Party party of the existence of the request and shall provide the other Party party a reasonable opportunity to review the information (to the extent such information is available to such party) and to assert any rights it or they may have under this Section 10.05 3.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information Records and other information pursuant to this Agreement is made in reliance on the agreement of IDT RFB and CTM SpinCo, as set forth in Section 10.04 3.4 and this Section 10.053.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary The access to information being granted pursuant to Sections 3.1 and 3.2 hereof and the transfer of privileged information between and among the parties and their respective 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.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Republic First Bancorp Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Parent Group and the CTM GroupSpinco, and that each of the members of the IDT Group Parent and the CTM Group Spinco should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT Parent or CTMSpinco, as the case may be. With respect to such post-separation services, the Parties agree as follows:
(i) IDT shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM. IDT shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information is in the possession of or under the control of IDT or CTM; and
(ii) CTM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Business, whether or not the privileged information is in the possession of or under the control of IDT or CTM. CTM shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information is in the possession of or under the control of IDT or CTM.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.058.4, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b8.4(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT Parent and CTM Spinco in respect of which both Parties retain any responsibility or Liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) belowdelayed. Consent shall be in writing, or shall be deemed to be granted unless written objection is made upon the Party requesting such consent within twenty (20) days after notice upon is given to the other Party requesting such consentParty. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party party if that privilege is a shared privilege or has been allocated to the other Party party pursuant to Section 10.05(b8.4(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsGroup’s, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its Group’s subsidiaries’ current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 8.4 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as set forth in Section 10.04 and this Section 10.05, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall 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 and Distribution Agreement (Consolidation Services Inc)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time Distribution (whether by outside counsel, in-house counsel or other legal professionals) have been and will be rendered for the collective benefit of each of the members of the IDT Honeywell Group and the CTM SpinCo Group, and that each of the members of the IDT Honeywell Group and the CTM SpinCo Group should shall be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time Distribution, which services will be rendered solely for the benefit of IDT the Honeywell Group or CTMthe SpinCo Group, as the case may be. With respect to such post-separation services, the .
(b) The Parties agree as follows:
(i) IDT Honeywell shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information which Information that relates solely to the IDT Honeywell Business and not to the SpinCo Business, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the Honeywell Group or CTMany member of the SpinCo Group. IDT Honeywell shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information Information that relates solely to the subject matter of any claims constituting IDT Liabilities, Honeywell Assets or Honeywell Liabilities and not any SpinCo Assets or SpinCo Liabilities in connection with any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDT, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the Honeywell Group or CTM; andany member of the SpinCo Group;
(ii) CTM SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information which Information that relates solely to the CTM SpinCo Business and not to the Honeywell Business, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Honeywell Group. CTM SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged information Information that relates solely to the subject matter of any claims constituting CTM Liabilities, SpinCo Assets or SpinCo Liabilities and not any Honeywell Assets or Honeywell Liabilities in connection with any Actions that are now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTM, whether or not the privileged information Information is in the possession of or under the control of IDT any member of the SpinCo Group or CTMany member of the Honeywell Group; and
(iii) If the Parties do not agree as to whether certain information is privileged Information, then such Information shall be treated as privileged Information, and the Party that believes that such information is privileged Information shall be entitled to control the assertion or waiver of all privileges and immunities in connection with any such information until such time as it is finally judicially determined that such information is not privileged Information or unless the Parties otherwise agree.
(c) The Subject to the remaining provisions of this Section 8.08, the Parties agree that they Honeywell shall have a shared privilegebe entitled, with equal right in perpetuity, to assert control the assertion or waive, subject to the restrictions in this Section 10.05, with respect to waiver of all privileges and immunities not allocated pursuant to the terms of Section 10.05(b). All privileges relating to 8.08(b) in connection with any claims, proceedings, litigation, disputes, Actions or threatened or contemplated Actions or other matters which that involve both IDT Parties (or one or more members of their respective Groups) and CTM in respect of which both Parties retain any responsibility or Liability have Liabilities under this Agreement shall be subject Agreement. Honeywell agrees, on behalf of itself and each member of the Honeywell Group, not to intentionally disclose or otherwise intentionally waive any such privilege or protection without consulting SpinCo. Upon the reasonable request of Honeywell or SpinCo, in connection with any Action or threatened or contemplated Action contemplated by this Article VIII, other than any Adversarial Action or threatened or contemplated Adversarial Action, Honeywell and SpinCo will enter into a shared mutually acceptable common interest agreement so as to maintain to the extent practicable any applicable attorney-client privilege among themor work product immunity of any member of either Group.
(d) No Party may waive If any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without dispute arises between the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other Party requesting such consent. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party if that privilege is a shared privilege or has been allocated to the other Party pursuant to Section 10.05(b).
(e) In the event of any litigation or dispute between or among any of the Parties, Parties or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such other Party’s 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 information with respect to the litigation or dispute between the relevant 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.
(f) If a dispute arises between the Parties or members of their Group regarding whether a privilege or immunity should be waived to protect or advance the interest interests of either PartyParty or any member of their respective Groups, each Party agrees that it shall (i) negotiate with the other Party in good faith, shall (ii) endeavor to minimize any prejudice to the rights of the other Party, Party and shall the members of its Group and (iii) not unreasonably withhold withhold, delay or condition consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(ge) Upon receipt by either Party Party, or by any member of its Group respective Group, of any subpoena, discovery or other request which arguably calls for (or of written notice that it will or has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of information privileged Information subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilegeprivilege or immunity, or if either Party obtains knowledge or becomes aware that any of its its, or any member of its respective Group’s ’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for (or have received written notice that they will or have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of such privileged informationInformation, such Party shall promptly notify the other Party of the existence of the any such subpoena, discovery or other request and shall provide the other Party a reasonable opportunity to review the information privileged Information and to assert any rights it or they may have have, under this Section 10.05 8.08 or otherwise otherwise, to prevent the production or disclosure of such privileged informationInformation; provided that if such Party is prohibited by applicable Law from 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 inform the other Party 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, under this Section 8.08 or otherwise, to prevent the production or disclosure of such privileged Information.
(hf) The Parties agree that their respective rights to any access to Information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and the transfer of all privileged Information between the Parties and members of their respective Groups pursuant to this Agreement is made in reliance on the agreement of IDT and CTM as set forth in Section 10.04 and this Section 10.05Agreement, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary 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 8.09 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 (Resideo Technologies, Inc.)
Privileged Matters. (a) The Parties recognize that legal and other professional services that have been and will be provided prior to the Effective Time have been and will be rendered for the collective benefit of each of the members of the IDT Parent Group and the CTM Spinco Group, and that each of the members of the IDT Parent Group and the CTM Spinco Group should be deemed to be the client with respect to such pre-separation services for the purposes of asserting all privileges which may be asserted under applicable Law.
(b) The Parties recognize that legal and other professional services will be provided following the Effective Time which will be rendered solely for the benefit of IDT Parent or CTMSpinco, as the case may be. With respect to such post-separation services, the Parties agree agrees as follows:
(i) IDT Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the IDT Parent Business, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinco. IDT Parent shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting IDT Parent Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IDTParent, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinco; and
(ii) CTM Spinco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CTM Spinco Business, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinco. CTM Spinco shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting CTM Spinco Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by CTMSpinco, whether or not the privileged information is in the possession of or under the control of IDT Parent or CTMSpinco.
(c) The Parties agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 10.058.5, with respect to all privileges not allocated pursuant to the terms of Section 10.05(b8.5(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IDT Parent and CTM Spinco in respect of which both Parties retain any responsibility or Liability under this Agreement Agreement, shall be subject to a shared privilege among them.
(d) No Party may waive any privilege which could be asserted under any applicable Law, and in which any other Party has a shared privilege, without the consent of the other Party, which shall not be unreasonably withheld or delayed or as provided in subsections (e) or (f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made upon the Party requesting such consent within twenty (20) days after notice upon s given to the other Party requesting such consentParty. Each Party shall use its reasonable best efforts to preserve any privilege held by the other Party party if that privilege is a shared privilege or has been allocated to the other Party party pursuant to Section 10.05(b8.5(b).
(e) In the event of any litigation or dispute between or among any of 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 other Party’s 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 information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective GroupsGroup’s, and shall not operate as a waiver of the shared privilege with respect to third parties.
(f) If a dispute arises between the Parties or members of their Group respective subsidiaries regarding whether a privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party, and shall not unreasonably withhold consent to any request for waiver by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.
(g) Upon receipt by either Party or by any member of its Group subsidiary thereof of any subpoena, discovery or other request which arguably calls for the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if either Party obtains knowledge that any of its or any member of its Group’s subsidiaries’ current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it or they may have under this Section 10.05 8.5 or otherwise to prevent the production or disclosure of such privileged information.
(h) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of IDT Parent and CTM Spinco as set forth in Section 10.04 8.4 and this Section 10.058.5, to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Nothing provided for herein or in any Ancillary Agreement shall 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 and Plan of Distribution (Michigan Commerce Bancorp LTD)