Privileged Matters. (a) Vishay and VPG agree that their respective rights and obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any of the members of the respective Groups, as the case may be, of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other or if Vishay or VPG, or any of members of their respective Groups, as the case may be, obtains knowledge that any current or former employee of Vishay or VPG, as the case may be, receives any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other, Vishay or VPG, as the case may be, shall promptly notify the other of the existence of the request and shall provide the other a reasonable opportunity to review the Information and to assert any rights it may have under this Section 4.6 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, a waiver of any Privilege that has been or may be asserted under this Section 4.6 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6.

Appears in 7 contracts

Samples: Master Separation and Distribution Agreement (Vishay Intertechnology Inc), Separation and Distribution Agreement (Vishay Precision Group, Inc.), Master Separation and Distribution Agreement (Vishay Precision Group, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) Parent shall 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 Retained Business and not to the Transferred Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Retained Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group; and (ii) SpinCo shall 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 Transferred Business and not to the Retained Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any Assumed Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Retained Business, solely to the Transferred Business, or to both the Retained Business and the Transferred Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party 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, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 6 contracts

Samples: Separation and Distribution Agreement (Atlas Energy, L.P.), Separation and Distribution Agreement (Targa Resources Partners LP), Separation and Distribution Agreement (Atlas Energy Group, LLC)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG~~ other professional services that have been and will be provided prior to the Distribution (whether by outside counsel, in-house counsel or other legal professionals) have been and will be rendered for the collective benefit of Nuance and its Subsidiaries (in such capacity). Solely for purposes of asserting privileges which may be asserted under applicable law, and without limiting the provisions of Section 7.10, each of the members of the Nuance Group and the Spinco Group shall be deemed to have been the client in connection with such services with respect to periods prior to the Distribution. The Parties recognize that legal and other professional services will be provided following the Distribution, which services will be rendered solely for the benefit of the Nuance Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) Nuance shall 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 Nuance Business or the Distribution and not to the operations of the SpinCo Business, whether or not the privileged Information is in the possession or under the control of any member of the Nuance Group or any member of the SpinCo Group. Nuance shall also 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 any Nuance Assets or Nuance Liabilities, and not any SpinCo Assets or SpinCo Liabilities, in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Nuance Group or any member of the SpinCo Group; (ii) SpinCo shall 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 operations of the SpinCo Business and not to the Nuance Business or the Distribution, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Nuance Group. SpinCo shall also 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 any SpinCo Assets or SpinCo Liabilities and not any Nuance Assets or Nuance Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Nuance 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) Subject to the remaining provisions of this Section 7.08, the Parties agree that Nuance shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities not allocated pursuant to Section 7.08(b) in connection with any Actions, or threatened or contemplated Actions, or other matters that involve both Parties (or one or more members of their respective ~~rights~~ Groups) and ~~obligations~~ in respect of which both Parties have Liabilities under this Agreement. Upon the reasonable request of Nuance 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, Nuance and SpinCo will enter into a mutually acceptable common interest agreement so as to ~~maintain~~maintain to the extent practicable any applicable attorney-client privilege, ~~preserve, assert~~ work product immunity or ~~waive~~ similar privilege or immunity of any member of either Group. (d) If any dispute arises between the Parties or ~~all privileges belonging to either party or the respective~~ any members of their respective Group ~~with respect~~ regarding whether a privilege or immunity should be waived to protect or advance the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions interests of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay either Party or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective ~~Groups would be entitled~~ Groups, each Party agrees that it shall: (i) negotiate with the other Party in good faith; (ii) endeavor to ~~assert or have asserted a Privilege without regard~~ minimize any prejudice to the ~~effect, if any,~~ rights of the ~~Separation~~ other Party and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member members of its Group; and (xiii) ~~all communications subject~~ not unreasonably withhold, delay or condition consent to ~~a Privilege between counsel~~ any request for ~~Vishay~~ waiver by the other Party. (~~including any Person who~~e) Upon receipt by either Party, ~~at the time of the communication, was an employee of Vishay~~ or ~~its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or~~ by any member of its respective Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any of the members of the respective Groups, as the case may be, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will receive or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will receive or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 7.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged~~ such privileged Information~~. Vishay~~ ; provided, that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this Section ~~4.6 unless (i)~~ 7.08 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (cf) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 6 contracts

Samples: Separation and Distribution Agreement (Nuance Communications, Inc.), Separation and Distribution Agreement (Cerence Inc.), Separation and Distribution Agreement (Cerence Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the Varex Group, and that each of the members of the Parent Group and the Varex Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the Varex Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the Varex Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the Varex Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the Varex Group; (ii) Varex shall 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 Varex Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the Varex Group or any member of the Parent Group. Varex shall also 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 any Varex Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Varex Group or any member of the Parent 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 Parent Business, solely to the Varex Business, or to both the Parent Business and the Varex Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and Varex, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, a waiver of any Privilege that has been or may be asserted under this Section 4.6 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6.

Appears in 6 contracts

Samples: Separation and Distribution Agreement, Separation and Distribution Agreement, Separation and Distribution Agreement

Privileged Matters. (a) ~~Vishay~~ The parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ the ~~respective~~ Time of Distribution have been and will be rendered for the collective benefit of each of the members of ~~their respective~~ the Pinnacle Group and the OpCo Group, and that each of the members of the Pinnacle Group and the OpCo Group should be deemed to be the client with respect to such services for the ~~Vishay~~ purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. (b) The parties agree as follows: (i) Pinnacle shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the Pinnacle Business or and not to the ~~MGF~~ OpCo Business, ~~including but~~ whether or not ~~limited~~ the privileged Information is in the possession or under the control of any member of the Pinnacle Group or any member of the OpCo Group. Pinnacle shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Pinnacle Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Pinnacle Group or any member of the OpCo Group; and (ii) OpCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the ~~attorney-client~~OpCo Business and not to the Pinnacle Business, ~~work product privileges~~ whether or not the privileged Information is in the possession or under the control of any member of the OpCo Group or any ~~other applicable~~ member of the Pinnacle Group. OpCo shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any OpCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the OpCo Group or any member of the Pinnacle Group. (~~individually, a “Privilege”), shall be governed by~~ c) Subject to the ~~provisions of~~ restrictions set forth in this Section ~~4.6. With respect to Privileged Information of Vishay~~4.8, ~~Vishay~~ the parties agree that they shall have ~~sole authority in perpetuity to determine whether~~ a shared privilege, each with equal right to assert or waive any such shared privilege, with respect to all privileges not allocated pursuant to Section 4.8(b) and all privileges relating to any Actions or ~~all Privileges~~other matters that involve both the Pinnacle Group and the OpCo Group and in respect of which both parties have Liabilities under this Agreement, and ~~VPG shall take~~ that no ~~action (nor permit any member of its Group to take action)~~ such shared privilege or immunity may be waived by either party without the ~~prior written~~ consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupparty. (bd) ~~Upon receipt by Vishay or VPG~~In the event of any Actions between Pinnacle and OpCo, or any of the members of the respective Groups, as the case may be, of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other or if Vishay or VPG, or any of members of their respective Groups, ~~as the case~~ either party may be, obtains knowledge that any current or former employee of Vishay or VPG, as the case may be, receives any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other, Vishay or VPG, as the case may be, shall promptly notify waive a privilege in which the other party or member of such other party’s Group has a shared privilege, without obtaining consent pursuant to Section 4.8(c); provided, that such waiver of a shared privilege shall be effective only as to the ~~existence~~ use of Information with respect to the ~~request and shall provide~~ Action between the ~~other a reasonable opportunity to review~~ parties and/or the Information and to assert any rights it may have under this Section 4.6 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the applicable members of their respective ~~Groups to not~~Groups, ~~produce or disclose~~ and shall not operate as a waiver of the shared privilege with respect to any third Person. (e) If any dispute arises between Pinnacle and OpCo, or any members of their respective Groups, regarding whether a privilege should be waived to protect or advance the interests of either the Pinnacle Group or the OpCo Group, 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’s Privileged Information~~ other party and (iii) not unreasonably withhold, condition or delay consent to any request for waiver by the other party. Further, each party specifically agrees that it will not withhold its consent to the waiver of a privilege for any purpose except to protect its own legitimate interests. (f) In furtherance of the parties’ agreement under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege4.8, ~~doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books~~ Pinnacle and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if anyOpCo shall, and ~~other Information to Vishay~~ shall cause applicable members of their respective Group to, maintain their respective separate and ~~VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s~~ joint privileges, including by executing joint defense and ~~VPG’s respective agreements, as set forth in Section 4.5 and~~ common interest agreements where necessary or useful for this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, a waiver of any Privilege that has been or may be asserted under this Section 4.6 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6purpose.

Appears in 6 contracts

Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (PNK Entertainment, Inc.), Separation and Distribution Agreement (Gaming & Leisure Properties, Inc.)

Privileged Matters. LTC and Healthcare recognize that legal and other professional services that have been and will be provided prior to the Distribution Date have been and will be rendered for the benefit of each of LTC and Healthcare and that each of LTC and Healthcare should be deemed to be the client for the purposes of asserting all Privileges. To allocate the interests of each party in the Privileged Information, the parties agree as follows: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ LTC shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all ~~privileges belonging to either party or the respective members of their respective Group~~ Privileges in connection with ~~respect~~ Privileged Information which relates solely to the ~~Vishay Business or the MGF~~ LTC Retained Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such~~ the Privileged Information ~~(other than VPG Information)~~ is in the possession of ~~VPG~~ or under the control of LTC or Healthcare. LTC 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~claims constituting LTC Retained Liabilities, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other proceedings initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby LTC, whether or not it the Privileged Information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group LTC or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~Healthcare. (b) ~~Upon receipt~~ Healthcare shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the Healthcare Business, whether or not the Privileged Information is in the possession of or under the control of LTC or Healthcare. Healthcare 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 Healthcare Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by ~~Vishay~~ Healthcare, whether or ~~VPG~~not the Privileged Information is in the possession of Healthcare or under the control of LTC or Healthcare. (c) LTC and Healthcare agree that they shall have a shared Privilege, with equal right to assert or waive, subject to the restrictions in this Section 7.07, with respect to all Privileges not allocated pursuant to the terms of Sections 7.07(a) and (b). All Privileges relating to any claims, proceedings, litigation, disputes or other matters which involve each of LTC and Healthcare in respect of which LTC and Healthcare retain any responsibility or liability under this Agreement shall be subject to a shared Privilege. (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, except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsection (e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 20 days after notice upon the other party requesting such consent. (e) In the event of any litigation or dispute between LTC and Healthcare, or any of them, any party may waive a Privilege in which any other party has a shared Privilege, without obtaining the ~~members~~ consent of the ~~respective Groups~~other party, provided that such waiver of a shared Privilege shall be effective only as to the ~~case may be~~use of Information with respect to the litigation or dispute between such parties, and shall not operate as a waiver of the shared Privilege with respect to third-parties. (f) If a dispute arises between the parties regarding whether a Privilege should be waived to protect or advance the interest of any party, each party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other parties, and shall not unreasonably withhold consent to any request for waiver by the other parties. 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 any party of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged~~ Information of subject to a shared Privilege or as to which any other party has the ~~other~~ sole right hereunder to assert a Privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ party obtains knowledge that any of its current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 may have under this Section ~~4.6~~ 7.07 or otherwise to prevent the production or disclosure of such Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (ch) ~~Vishay’s~~ The transfer of ~~books~~ the Healthcare Books and ~~records pertaining to~~ Records and the ~~MGF Business~~ LTC Books and Records and other Information ~~to VPG~~between LTC, ~~Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books~~ Healthcare and ~~records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are~~ their respective Subsidiaries is made in reliance on ~~Vishay’s~~ the agreement of LTC and ~~VPG’s respective agreements~~Healthcare, as set forth in ~~Section 4.5~~ Sections 7.06 and ~~this Section 4.6~~7.07, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 7.01 and ~~4.4~~ 7.02, the agreement to provide witnesses and individuals pursuant to Section 7.03 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to the MGF Business or the Vishay Business~~ between LTC, Healthcare and their respective Subsidiaries pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 6 contracts

Samples: Distribution Agreement (LTC Healthcare Inc), Distribution Agreement (LTC Healthcare Inc), Distribution Agreement (LTC Properties Inc)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ the Effective Time have been and will be rendered for the collective benefit of each of the respective members of ~~their~~ the Grace Group and the GCP Group, and that each of the respective members of the Grace Group and the GCP Group should be deemed to be the client with respect to such services for the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product~~ purposes of asserting all privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could which may be asserted ~~by Vishay or any member of its Group~~ under ~~Applicable~~ applicable Law ~~and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority~~ in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreementconnection therewith. The ~~rights~~ Parties recognize that legal and ~~obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to~~ other professional services will be provided following the Effective Time, which ~~Vishay or VPG or their respective Groups would~~ services will be ~~entitled to assert or have asserted a Privilege without regard to~~ rendered solely for the ~~effect, if any,~~ benefit of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Grace Group or the ~~MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its~~ GCP Group~~. (b) Upon receipt by Vishay or VPG, or any of the members of the respective Groups~~, as the case may be. (b) The Parties agree as follows: (i) Grace shall 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 Grace Business, the Grace Sold and Discontinued Businesses and the Legacy Sold and Discontinued Businesses that constitute Grace Assets and not to the GCP Business, the GCP Sold and Discontinued Businesses or the Legacy Sold and Discontinued Businesses that constitute GCP Assets, whether or not the Privileged Information is in the possession or under the control of any member of the Grace Group or any member of the GCP Group. Grace shall also 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 any Grace Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Grace Group or any member of the GCP Group; and (ii) GCP shall 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 GCP Business the GCP Sold and Discontinued Businesses and the Legacy Sold and Discontinued Businesses that constitute GCP Assets and not to the Grace Business the Grace Sold and Discontinued Businesses or the Legacy Sold and Discontinued Businesses that constitute Grace Assets, whether or not the Privileged Information is in the possession or under the control of any member of the GCP Group or any member of the Grace Group. GCP shall also 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 any GCP Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the GCP Group or any member of the Grace 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 (A) solely to the Grace Business, the Grace Sold and Discontinued Businesses or the Legacy Sold and Discontinued Businesses that constitute Grace Assets, (B) solely to the GCP Business, the GCP Sold and Discontinued Businesses or the Legacy Sold and Discontinued Businesses that constitute GCP Assets or (C) to both. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party 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, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or Dispute between Grace and GCP, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c), provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action or Dispute between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any other member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 ten (10) 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Grace and GCP set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~6.8, the Parties agree to, and to cause the applicable other 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 5 contracts

Samples: Separation and Distribution Agreement (GCP Applied Technologies Inc.), Separation and Distribution Agreement (W R Grace & Co), Separation and Distribution Agreement (GCP Applied Technologies Inc.)

Privileged Matters. To allocate the interests of each Party with respect to privileged information, the Parties agree as follows: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ ParentCo shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the ~~Vishay Business or the MGF~~ ParentCo Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of ParentCo or SpinCo. 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 Liabilities 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 ~~member~~ of its ~~Group;~~ Affiliates (in each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and ~~(x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~assigns, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other Actions initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby ParentCo, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group ParentCo or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~SpinCo. (b) 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 SpinCo Business, whether or not the privileged information is in the possession of or under the control of ParentCo or SpinCo. SpinCo 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 SpinCo Liabilities, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by SpinCo, whether or not the privileged information is in the possession of SpinCo or under the control of ParentCo or SpinCo. (c) ParentCo and SpinCo agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions of this Section 8.5, with respect to all privileges not allocated pursuant to the terms of Sections 8.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes or other matters which involve both ParentCo and SpinCo in respect of which ParentCo and SpinCo retain any responsibility or liability under this Agreement shall be subject to a shared privilege. (d) No Party may waive any privilege which could be asserted under any applicable law, if the other Party has a shared privilege, without the consent of the other Party, except to the extent reasonably required in connection with any litigation with Third Parties or as provided in Section 8.5(e). 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. (e) In the event of any litigation or dispute between the Parties and any of its Affiliates, either Party may waive a privilege in which the other Party 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 Parties and any of its Affiliates, and shall not operate as a waiver of the shared privilege with respect to Third Parties. (f) If a dispute arises between the Parties 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 ~~Vishay or VPG, or~~ any ~~of the members of the respective Groups, as the case may be,~~ Party of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged~~ Information of subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 may have under this Section ~~4.6~~ 8.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of ParentCo and ~~VPG’s respective agreements~~SpinCo, as set forth in ~~Section 4.5 and~~ this Section ~~4.6~~8.5 and elsewhere in this Agreement, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~assert and maintain applicable privileges. The access to ~~Information, witnesses and individuals~~ Information being granted pursuant to Sections ~~4.3~~ 8.1 and ~~4.4~~ 8.2, the agreement to provide witnesses and individuals pursuant to Section 8.3 and the ~~disclosure to VPG and Vishay~~ transfer of ~~Privileged Information relating to~~ privileged information between the ~~MGF Business or the Vishay Business~~ Parties pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 5 contracts

Samples: Separation and Distribution Agreement (China Index Holdings LTD), Separation and Distribution Agreement (China Index Holdings LTD), Separation and Distribution Agreement (China Index Holdings LTD)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~BGC Partners Group and the Newmark Group, and that each of the members of the BGC Partners Group and the Newmark Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under Applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of members of the BGC Partners Group or the Newmark Group, as the case may be. (b) The Parties agree as follows: (i) The BGC Partners Group shall 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 Retained Business and not to the Transferred Business, whether or not the Privileged Information is in the possession or under the control of any member of the BGC Partners Group or any member of the Newmark Group. The BGC Partners Group shall also 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 any Excluded Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the BGC Partners Group or any member of the Newmark Group. (ii) The Newmark Group shall 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 Transferred Business and not to the Retained Business, whether or not the Privileged Information is in the possession or under the control of any member of the Newmark Group or any member of the BGC Partners Group. The Newmark Group shall also 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 any Transferred Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Newmark Group or any member of the BGC Partners 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. (c) Subject to the remaining provisions of this Section 6.04, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.04(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by a Party without the consent of the other Parties. (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 a Party and/or any member of its Group, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or Dispute between BGC Partners and Newmark, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of the other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.04(c); provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between such Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any third Person. (f) Upon receipt by a Party, or by any member of its Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ a Party obtains knowledge that any of its, or any member of its Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.04 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (cg) ~~Vishay’s~~ Any furnishing of, or access or transfer ~~of books and records pertaining~~ of, any information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of BGC Partners and ~~VPG’s respective agreements, as~~ Newmark set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 6.04 and in Section 6.05 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The Parties agree that their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties and members of their respective Groups contemplated by this Agreement, and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to~~ between the ~~MGF Business or the Vishay Business~~ Parties and members of their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.03 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~6.04, 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 5 contracts

Samples: Separation and Distribution Agreement (BGC Partners, Inc.), Separation and Distribution Agreement (Newmark Group, Inc.), Separation and Distribution Agreement (BGC Partners, Inc.)

Privileged Matters. (a) ~~Vishay and VPG~~ The parties agree that ~~their respective rights~~ from and ~~obligations to~~ after the Control Date CRC and its Affiliates will maintain, ~~preserve~~preserve and assert all privileges, ~~assert~~ including, without limitation, privileges arising under or ~~waive any or all privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited~~ relating to the attorney-~~client~~client relationship (which shall include, without limitation, the attorney-client and work product ~~privileges~~ privileges) that relate directly or indirectly to the Assets, the Allocated Liabilities or the Retained Liabilities or CRC's and its Affiliates' business for any ~~other applicable privileges~~ period prior to the Closing Date (~~individually, a “Privilege”~~"Privileges"), . CRC shall ~~be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or~~ not waive any ~~or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action)~~ Privilege that could be asserted under applicable law without the prior written consent of ~~Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law~~ CSX and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this AgreementNSC. The rights and obligations created by this Section ~~4.6~~ 8.14 shall apply to all ~~Information (“Privileged Information”)~~ information as to ~~which Vishay or VPG or their respective Groups~~ which, but for the transactions contemplated by this Agreement and the Ancillary Agreements, CRC would be have been entitled to assert or ~~have asserted~~ did assert the protection of a Privilege ~~without regard to the effect~~("Privileged Information"), ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes~~ including but is not limited to (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Closing Date but which, ~~whether or not such Information (other than VPG Information)~~ after the Closing, is in the possession of ~~VPG~~ CSX, NSC, NYC or ~~any member of its Group; and~~ PRR (xii) all communications subject to a Privilege occurring prior to the Closing Date between counsel for ~~Vishay (including~~ CRC and any ~~Person~~ person who, at the time of the communication, was an employee of ~~Vishay or its Group in the capacity of in-house counsel~~CRC, regardless of whether such employee is or becomes an employee of ~~VPG~~ CSX, NSC, NYC or ~~any member of its Group~~PRR and (iii) ~~and any Person who~~all information generated, at received or arising after the ~~time of the communication, was an employee of Vishay, regardless of whether such employee is~~ Closing that refers or ~~becomes an employee of VPG or any member of its Group.~~ relates to Privileged Information ~~of VPG and its Group includes but is not limited~~ generated, received or arising prior to ~~(x) any and all VPG Information, whether or not it is in~~ the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupClosing. (b) ~~Upon~~ From and after the Control Date, upon receipt by ~~Vishay or VPG,~~ CRC or any of ~~the members of the respective Groups, as the case may be,~~ its Affiliates of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or~~ arguably calls for the production or disclosure of Privileged Information ~~of the other~~ or if ~~Vishay or VPG,~~ CRC or any of ~~members of their respective Groups, as the case may be,~~ its Affiliates obtains knowledge that any current or former employee of ~~Vishay~~ CRC or ~~VPG, as the case may be, receives~~ any of its Affiliates has received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ CRC shall promptly notify ~~the other~~ in writing CSX, NSC, NYC and PRR of the existence of the request and shall provide ~~the other~~ CSX and NSC a reasonable opportunity to review the ~~Information~~ information and to assert any rights it may have under this Section ~~4.6~~ 8.14 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ CRC will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any ~~third party any of the other’s Privileged Information~~ information arguably covered by a Privilege under this Section ~~4.6~~ 8.13 unless (i) ~~the non-disclosing party has~~ CSX and NSC have both provided ~~its express~~ their written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an a final, nonappealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable privilege~~, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~. (c) ~~Vishay’s transfer of books and records pertaining to~~ If there is a reasonable likelihood that the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted waiver by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, a waiver CRC of any Privilege ~~that has been~~ could expose CSX, NSC, NYC or ~~may~~ PRR to Liability or could prejudice the other party's position in pending or threatened litigation, otherwise adversely affect CSX, NSC, NYC or PRR, CRC will promptly notify in writing CSX and NSC prior to such waiver, and, at CSX's and NSC's request, CRC will assert or preserve the Privilege, as applicable, if CRC's interests will not be ~~asserted under this Section 4.6~~ adversely affected by its assertion or ~~otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition~~ preservation of the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~Privilege.

Appears in 5 contracts

Samples: Transaction Agreement (CSX Corp), Transaction Agreement (CSX Transportation Inc), Transaction Agreement (Norfolk Southern Corp)

Privileged Matters. The parties hereto recognize that legal and other professional services that have been and will be provided prior to the Distribution Date have been and will be rendered for the benefit of each of the members of the Parent Group, and each of the members of the SpinCo Group, and that each of the members of the Parent Group, and each of the members of the SpinCo Group should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable Law. Except as otherwise specifically provided in the Tax Disaffiliation Agreement with respect to tax 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ Parent shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the ~~Vishay Business or the MGF~~ Parent Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of Parent or SpinCo. 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~claims constituting Parent Liabilities, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any Action initiated against or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby Parent, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group Parent or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~SpinCo. (b) 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 SpinCo Business, whether or not the privileged information is in the possession of or under the control of Parent or SpinCo. SpinCo 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 SpinCo Liabilities, now pending or which may be asserted in the future, in any Action initiated against or by SpinCo, whether or not the privileged information is in the possession of SpinCo or under the control of Parent or SpinCo. (c) The parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 4.5, with respect to all privileges not allocated pursuant to the terms of Sections 4.5(a) and (b). All privileges relating to any Action, disputes or other matters which involve Parent and SpinCo in respect of which such parties retain any responsibility or liability under this Agreement, shall be subject to a shared privilege among them. (d) No party hereto may waive any privilege which could be asserted under any applicable Law, and in which any other party hereto has a shared privilege, without the consent of the other party, which consent shall not be unreasonably withheld or delayed, except to the extent reasonably required in connection with any Action with Third Parties or as provided in subsection (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. (e) In the event of any Action or dispute between any of the parties hereto, any party and a Subsidiary of another party hereto, or a Subsidiary of one party hereto and a Subsidiary of another party hereto, either such party, to the extent necessary in connection with such Action or dispute, may waive a privilege in which the other party 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 such Action or dispute between the relevant parties and/or their Subsidiaries, 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 hereto or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of any party, each party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other parties, and shall not unreasonably withhold consent to any request for waiver by another party. Each 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 ~~Vishay~~ any party hereto or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ party obtains knowledge that any of its or any of its Subsidiaries' current or former ~~employee of Vishay or VPG, as the case may be, receives~~ Representatives has received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 (to the extent such information is available to such party) and to assert any rights it or they may have under this Section ~~4.6~~ 4.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Parent and ~~VPG’s respective agreements~~SpinCo, as set forth in ~~Section 4.5~~ Sections 4.4 and ~~this Section 4.6~~4.5, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 4.1 and ~~4.4~~ 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 ~~disclosure to VPG~~ transfer of privileged information between and ~~Vishay of Privileged Information relating to~~ among the ~~MGF Business or the Vishay Business~~ parties and their respective Subsidiaries pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 5 contracts

Samples: Agreement and Plan of Distribution (Citadel Security Software Inc), Distribution Agreement (National Service Industries Inc), Distribution Agreement (L&c Spinco Inc)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group; (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.9, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.9(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one (1) or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived or compromised by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any other member of their respective Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose, except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, neither Party shall assert against the other Party, as to the use of information with respect to a related Action between the Parties and/or the applicable members of their respective Groups, a privilege in which the other Party or any other member of such other Party’s Group has a shared privilege; provided that this shall not operate as a waiver of any shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any other member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any other member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 (or sooner if required under applicable Law) following the receipt of any such subpoena, discovery or other request) and shall provide the other Party a reasonable opportunity to review the Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.9 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Parent and SpinCo set forth in this Section 6.9 and in Section 6.10 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.8 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~6.9, 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 5 contracts

Samples: Separation and Distribution Agreement (3m Co), Separation and Distribution Agreement (Solventum Corp), Separation and Distribution Agreement (Solventum Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~KAR Group and the SpinCo Group, and that each of the members of the KAR Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the KAR Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) KAR shall 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 KAR Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the KAR Group or any member of the SpinCo Group. KAR shall also 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 any KAR Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the KAR Group or any member of the SpinCo Group; and (ii) SpinCo shall 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 SpinCo Business and not to the KAR Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the KAR Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the KAR 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 KAR Business, solely to the SpinCo Business, or to both the KAR Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party 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, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or Dispute between KAR and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of such Party’s respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of such Party’s respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the covenants and agreements of KAR and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that (i) their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege or immunity that has been or may be asserted under this Agreement or otherwise 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 VI, 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 ~~4.6~~ 6.7 or ~~otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 5 contracts

Samples: Separation and Distribution Agreement (IAA, Inc.), Separation and Distribution Agreement (KAR Auction Services, Inc.), Separation and Distribution Agreement (IAA Spinco Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ the ~~respective~~ Effective Time have been and will be rendered for the collective benefit of each of the members of ~~their respective~~ the PEC Group and the Patriot Group, and that each of the members of the PEC Group and the Patriot Group should be deemed to be the client with respect to such pre-separation services for the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product~~ purposes of asserting all privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could which may be asserted ~~by Vishay or any member of its Group~~ under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupapplicable Law. (b) ~~Upon receipt by Vishay~~ 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 PEC or ~~VPG, or any of the members of the respective Groups~~Patriot, as the case may be. With respect to such post-separation services, the Parties agrees as follows: (i) PEC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the PEC Business, whether or not the privileged information is in the possession of or under the control of PEC or Patriot. PEC 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 PEC Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by PEC, whether or not the privileged information is in the possession of or under the control of PEC or Patriot; and (ii) Patriot shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the Patriot Business, whether or not the privileged information is in the possession of or under the control of PEC or Patriot. Patriot 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 Patriot Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Patriot, whether or not the privileged information is in the possession of or under the control of PEC or Patriot. (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 13.05, with respect to all privileges not allocated pursuant to the terms of Section 13.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both PEC and Patriot 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 13.05(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 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 Group’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 their 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 subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information 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 ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its or any of its Subsidiaries’ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 13.05 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of PEC and ~~VPG’s respective agreements,~~ Patriot as set forth in Section ~~4.5~~ 13.04 and ~~this~~ Section ~~4.6~~13.05, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps~~ assert and maintain all applicable privileges. Nothing provided for herein ~~for the preservation of all Privileges that may belong to~~ or in any Ancillary Agreement shall be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 5 contracts

Samples: Separation Agreement, Plan of Reorganization and Distribution (Patriot Coal CORP), Separation Agreement (Patriot Coal CORP), Separation Agreement, Plan of Reorganization and Distribution (Patriot Coal CORP)

Privileged Matters. (a) ~~Vishay~~ The parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~GGP Group and the Spinco Group, and that each of the members of the GGP Group and the Spinco Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the GGP Group or the Spinco Group, as the case may be. (b) The parties agree as follows: (i) GGP shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the GGP Business and not to the Spinco Business, whether or not the privileged Information is in the possession or under the control of any member of the GGP Group or any member of the Spinco Group. GGP shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Excluded Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the GGP Group or any member of the Spinco Group; and (ii) Spinco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the Spinco Business and not to the GGP Business, whether or not the privileged Information is in the possession or under the control of any member of the Spinco Group or any member of the GGP Group. Spinco shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Spinco Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Spinco Group or any member of the GGP Group. (c) Subject to the restrictions set forth in this Section 4.8, the parties agree that they shall have a shared privilege, each with equal right to assert any such shared privilege, with respect to all privileges not allocated pursuant to Section 4.8(b) and all privileges relating to any Actions or other matters that involve both the GGP Group and the Spinco Group and in respect of which both parties have Liabilities under this Agreement. (d) Subject to Sections 4.8(e) and (f), no party may waive any privilege that could be asserted under any applicable Law, and in which the other party has a shared privilege, without the consent of the other party, which consent shall (i) not be unreasonably withheld, conditioned or delayed, (ii) be in writing and (iii) be deemed to be granted unless written objection is made within twenty (20) days after notice has been given to the other party requesting such consent. (e) In the event of any Actions between GGP and Spinco, or any members of their respective Groups, either party may waive a privilege in which the other party or member of such other party’s Group has a shared privilege, without obtaining consent pursuant to Section 4.8(d); provided, that such waiver of a shared privilege shall be effective only as to the use of Information with respect to the Action between the parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any third Person. (f) If any dispute arises between GGP and Spinco, or any members of their respective Groups, regarding whether a privilege should be waived to protect or advance the interests of either the GGP Group or the Spinco Group, 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, condition or delay consent to any request for waiver by the other party. Further, each party specifically agrees that it will not withhold its consent to the waiver of a privilege for any purpose except to protect its own legitimate interests. (g) Upon receipt by either party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information of subject to a shared privilege or as to which another party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 and to assert any rights it or they may have under this Section ~~4.6~~ 4.8 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of GGP and ~~VPG’s respective agreements, as~~ Spinco set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 4.8 and in Section 6.2 to maintain the confidentiality of ~~such~~ privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The parties agree that their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition~~ . (i) In furtherance of the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ parties’ agreement under this Section ~~4.6~~4.8, GGP and Spinco shall, and shall cause applicable members of their respective Group to, maintain their respective separate and joint privileges, including by executing joint defense and common interest agreements where necessary or useful for this purpose.

Appears in 5 contracts

Samples: Separation Agreement (Howard Hughes Corp), Separation Agreement (General Growth Properties, Inc.), Separation Agreement (New GGP, Inc.)

Privileged Matters. To allocate the interests of each Party with respect to privileged information, the Parties agree as follows: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ PDL shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the ~~Vishay Business or the MGF~~ PDL Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of PDL or Facet. 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 Liabilities of PDL 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 PDL or any ~~member~~ of its ~~Group;~~ Affiliates (in each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and ~~(x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~assigns, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other Actions initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby PDL, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group PDL or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~Facet. (b) Facet shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the Facet Business, whether or not the privileged information is in the possession of or under the control of PDL or Facet. Facet 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 Facet Liabilities, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by Facet, whether or not the privileged information is in the possession of Facet or under the control of PDL or Facet. (c) PDL and Facet agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions of this Section 8.4, with respect to all privileges not allocated pursuant to the terms of Sections 8.4(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes or other matters which involve both PDL and Facet in respect of which PDL and Facet retain any responsibility or liability under this Agreement shall be subject to a shared privilege. (d) No Party may waive any privilege which could be asserted under any applicable law, if the other Party has a shared privilege, without the consent of the other Party, except to the extent reasonably required in connection with any litigation with Third Parties or as provided in Section 8.4(e). 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. (e) In the event of any litigation or dispute between the Parties and any of its Affiliates, either Party may waive a privilege in which the other Party 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 Parties and any of its Affiliates, and shall not operate as a waiver of the shared privilege with respect to Third Parties. (f) If a dispute arises between the Parties 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 ~~Vishay or VPG, or~~ any ~~of the members of the respective Groups, as the case may be,~~ Party of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged~~ Information of subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 may have under this Section ~~4.6~~ 8.4 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of PDL and ~~VPG’s respective agreements~~Facet, as set forth in ~~Section 4.5 and~~ this Section ~~4.6~~8.4 and elsewhere in this Agreement, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~assert and maintain applicable privileges. The access to ~~Information, witnesses and individuals~~ Information being granted pursuant to Sections ~~4.3~~ 8.1 and ~~4.4~~ 8.2, the agreement to provide witnesses and individuals pursuant to Section 8.3 and the ~~disclosure to VPG and Vishay~~ transfer of ~~Privileged Information relating to~~ privileged information between the ~~MGF Business or the Vishay Business~~ Parties pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 4 contracts

Samples: Separation and Distribution Agreement (Facet Biotech Corp), Separation and Distribution Agreement (PDL Biopharma, Inc.), Separation and Distribution Agreement (Facet Biotech Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ shall be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges~~ Effective Time (~~individually, a “Privilege”), shall be governed~~ whether by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house outside counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel or other legal professionals) have been and ~~former in-house counsel who are employees~~ shall be rendered for the collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~HHH Group and the Seaport Entertainment Group, and that each of the members of the HHH Group and the Seaport Entertainment Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided after the Effective Time, which services will be rendered solely for the benefit of the HHH Group or the Seaport Entertainment Group, as the case may be. (b) The Parties agree as follows: (i) HHH shall 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 HHH Business, whether or not the Privileged Information is in the possession or under the control of a member of the HHH Group or the Seaport Entertainment Group; HHH shall also 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 any HHH Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of a member of the HHH Group or the Seaport Entertainment Group; (ii) Seaport Entertainment shall 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 Seaport Entertainment Business, whether or not the Privileged Information is in the possession or under the control of a member of the HHH Group or the Seaport Entertainment Group; Seaport Entertainment shall also 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 any Seaport Entertainment Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of a member of the HHH Group or the Seaport Entertainment 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 HHH Business, solely to the Seaport Entertainment Business, or to both the HHH Business and the Seaport Entertainment Business. (c) Subject to Sections 6.8(d) and 6.8(e), the Parties agree that they shall have a shared privilege or immunity with respect to all privileges not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the written consent of the other Party. (d) If any dispute arises between the Parties, or any member of their respective Groups, 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 Groups, 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, delay or condition consent to any request for waiver by the other Party. Further, each Party specifically agrees that it shall not withhold, delay, or condition its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests. (e) Upon receipt by any member of the Seaport Entertainment Group of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information ~~of the other~~ subject to a shared privilege or ~~if Vishay~~ immunity or ~~VPG,~~ as to which HHH or any of ~~members of their respective Groups~~its Subsidiaries has the sole right hereunder to assert a privilege or immunity, ~~as the case may be,~~ or if Seaport Entertainment obtains knowledge that any of its, or any member of the Seaport Entertainment Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ Seaport Entertainment shall promptly ~~notify the other~~ provide written notice to HHH of the existence of the request (which notice shall be delivered to HHH no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide ~~the other~~ HHH a reasonable opportunity to review the Information and to assert any rights it or they may ~~have~~ have, including under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (f) Upon receipt by any member of the HHH 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 Seaport Entertainment or any member of the Seaport Entertainment Group has the sole right hereunder to assert a privilege or immunity, or if HHH obtains knowledge that any of its, or any member of the HHH 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, HHH shall promptly provide written notice to Seaport Entertainment of the existence of the request (which notice shall be delivered to Seaport Entertainment no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide Seaport Entertainment 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 and the transfer of the Assets and retention of the Seaport Entertainment Assets by Seaport Entertainment are made and done in reliance on the agreement of the Parties set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return or transfer, as the case may be, such Privileged Information to ~~reduce~~the Party who has the right to assert the privilege or immunity. (h) In furtherance of, ~~minimize or condition~~ and without limitation to, the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ Parties’ agreement under this Section ~~4.6~~6.8, HHH and Seaport Entertainment 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 4 contracts

Samples: Separation and Distribution Agreement (Howard Hughes Holdings Inc.), Separation and Distribution Agreement (Seaport Entertainment Group Inc.), Separation and Distribution Agreement (Seaport Entertainment Group Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group; and (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution shall~~ Agreement, is not intended to be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 4 contracts

Samples: Separation and Distribution Agreement (Tegna Inc), Separation and Distribution Agreement (Gannett Co., Inc.), Separation and Distribution Agreement (Gannett SpinCo, Inc.)

Privileged Matters. (a) ~~Vishay~~ The parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Distribution Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~JDSU Group and the Lumentum Group, and that each of the members of the JDSU Group and the Lumentum Group shall be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The parties recognize that legal and other professional services will be provided following the Distribution Effective Time, which services will be rendered solely for the benefit of the JDSU Group or the Lumentum Group, as the case may be. (b) Notwithstanding anything to the contrary in this Article IV, the parties agree as follows: (i) JDSU shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the JDSU Business and not to the Lumentum Business, whether or not the privileged Information is in the possession or under the control of any member of the Lumentum Group or any member of the JDSU Group. JDSU shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Excluded Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Lumentum Group or any member of the JDSU Group; and (ii) Lumentum shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the Lumentum Business and not to the JDSU Business, whether or not the privileged Information is in the possession or under the control of any member of the Lumentum Group or any member of the JDSU Group. Lumentum shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Lumentum Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of Lumentum or any member of the JDSU Group. (c) Subject to the restrictions set forth in this Section 4.8, the parties agree that they shall have a shared privilege, each with equal right to assert or waive any such shared privilege, with respect to all privileges not allocated pursuant to Section 4.8(b) and all privileges relating to any Actions or other matters that involve both the JDSU Group and Lumentum Group and in respect of which both parties have Liabilities under this Agreement. (d) Subject to Sections 4.8(e) and (f), no party may waive any privilege that could be asserted under any applicable Law, and in which the other party has a shared privilege, without the consent of the other party, which consent shall (i) not be unreasonably withheld, conditioned or delayed, (ii) be in writing and (iii) notwithstanding clause (ii), be deemed to be granted unless written objection is made within twenty (20) days after notice has been given by the party requesting such consent of the other party. (e) If any dispute arises between JDSU and Lumentum, or any members of their respective Groups, regarding whether a privilege should be waived to protect or advance the interests of either the JDSU Group or Lumentum Group, 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, condition or delay consent to any request for waiver by the other party. Nevertheless, each party is permitted to withhold its consent to the waiver of a privilege for the purpose of protecting its own legitimate interests. (f) Upon receipt by either party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information of subject to a shared privilege or as to which the other party has the sole right under this Agreement to assert a privilege, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 and to assert any rights it or they may have under this Section ~~4.6~~ 4.8 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (cg) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of JDSU and ~~VPG’s respective agreements, as~~ Lumentum set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 4.8 and in Section 5.4 to maintain the confidentiality of ~~such~~ privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The parties agree that their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition~~ . (h) In furtherance of the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ parties’ agreement under this Section ~~4.6~~4.8, JDSU and Lumentum shall, and shall cause applicable members of their respective Group to, maintain their respective separate and joint privileges, including by executing joint defense and common interest agreements where necessary or useful for this purpose.

Appears in 4 contracts

Samples: Separation and Distribution Agreement (Lumentum Holdings Inc.), Separation and Distribution Agreement (Viavi Solutions Inc.), Separation and Distribution Agreement (Lumentum Holdings Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that have been and shall be provided prior to the Effective Time have been and shall be rendered for the collective benefit of the Parties and their respective ~~rights~~ Subsidiaries, and ~~obligations~~ that each Party and its respective Subsidiaries should be deemed to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ be the ~~respective members of their respective Group~~ client with respect to such services for the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product~~ purposes of asserting all privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and ~~VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay~~ immunities that ~~could result in any waiver of any Privilege that could~~ may be asserted ~~by Vishay or any member of its Group~~ under ~~Applicable~~ applicable Law ~~and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority~~ in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupconnection therewith. (b) ~~Upon receipt~~ The Parties agree as follows: (i) Abbott shall 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 Abbott Business, whether or not the Privileged Information is in the possession or under the control of Abbott or an Abbott Subsidiary or AbbVie or an AbbVie Subsidiary. Abbott shall also 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 any Abbott Liabilities resulting from any Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of Abbott or an Abbott Subsidiary or AbbVie or an AbbVie Subsidiary. (ii) AbbVie shall 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 AbbVie Business, whether or not the Privileged Information is in the possession or under the control of AbbVie or an AbbVie Subsidiary or Abbott or an Abbott Subsidiary. AbbVie shall also 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 any AbbVie Liabilities resulting from any Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of AbbVie or an AbbVie Subsidiary or Abbott or an Abbott Subsidiary. (iii) If Xxxxxx and AbbVie 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 VII to resolve any disputes as to whether any Information relates solely to the Abbott Business, solely to the AbbVie Business, or to both the Abbott Business and the AbbVie Business. (c) Subject to Sections 6.07(d) and 6.07(e), the Parties agree that they shall have a shared privilege or immunity with respect to all privileges not allocated pursuant to Section 6.07(b) and all privileges and immunities relating to any Proceedings or other matters that involve both Parties (or one or more of their respective Subsidiaries) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by ~~Vishay or VPG~~either Party without the consent of the other Party. (d) If any dispute arises between Xxxxxx and AbbVie, or any of their respective Subsidiaries, regarding whether a privilege or immunity should be waived to protect or advance the ~~members~~ interests of either Party and/or their respective Subsidiaries, 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 ~~respective Groups~~other Party; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, as each Party specifically agrees that it shall not withhold its consent to the ~~case may be,~~ waiver of a privilege or immunity for any purpose except to protect its own legitimate interests. (e) Upon receipt by AbbVie or by any of the AbbVie Subsidiaries of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information ~~of the other~~ subject to a shared privilege or ~~if Vishay~~ immunity or ~~VPG,~~ as to which Abbott or any of ~~members of their respective Groups~~the Abbott Subsidiaries has the sole right hereunder to assert a privilege or immunity, ~~as the case may be,~~ or if AbbVie obtains knowledge that any of its, or the AbbVie Subsidiary’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ AbbVie shall promptly ~~notify the other~~ provide Notice to Abbott of the existence of the request (which Notice shall be delivered to Abbott no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide ~~the other~~ Abbott a reasonable opportunity to review the Information and to assert any rights it or they may ~~have~~ have, including under this Section ~~4.6~~ 6.07 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information~~. Vishay~~ . (f) Upon receipt by Abbott or ~~VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party~~ by any of the ~~other’s~~ Abbott 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 AbbVie or any of the AbbVie Subsidiaries has the sole right hereunder to assert a privilege or immunity, or if Abbott obtains knowledge that any of its, or the Abbott 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, Abbott shall promptly provide Notice to AbbVie of the existence of the request (which Notice shall be delivered to AbbVie no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide AbbVie a reasonable opportunity to review the Information and to assert any rights it or they may have, including under this Section ~~4.6 unless (i)~~ 6.07 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~Privileged Information. (cg) ~~Vishay’s transfer of books and records pertaining~~ Any furnishing of, or access to, Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Xxxxxx and ~~VPG’s respective agreements, as~~ AbbVie set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 6.07 and in Section 6.08 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The ~~access~~ Parties further agree that (i) the exchange by one Party to ~~Information, witnesses and individuals being granted~~ the other Party of any Privileged Information that should not have been transferred pursuant to ~~Sections 4.3 and 4.4 and~~ the ~~disclosure to VPG and Vishay~~ terms of ~~Privileged Information relating to the MGF Business or the Vishay Business pursuant to~~ this ~~Agreement in connection with the Separation and Distribution~~ Article VI shall not be ~~asserted by Vishay or VPG~~ deemed to ~~constitute, or otherwise deemed,~~ constitute a waiver of any ~~Privilege~~ privilege or immunity that has been or may be asserted under this ~~Section 4.6~~ Agreement or ~~otherwise. Nothing in this Agreement~~ otherwise with respect to such Privileged Information; and (ii) the Party receiving such Privileged Information shall ~~operate~~ promptly return such Privileged Information to ~~reduce~~the Party who has the right to assert the privilege or immunity. (h) In furtherance of, ~~minimize or condition~~ and without limitation to, the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ Parties’ agreement under this Section ~~4.6~~6.07, Xxxxxx and AbbVie 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 4 contracts

Samples: Separation and Distribution Agreement (AbbVie Inc.), Separation and Distribution Agreement (Abbott Laboratories), Separation and Distribution Agreement (AbbVie Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ shall be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”),~~ Effective Time have been and shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~TFMC Group and the TEN Group, and that each of the members of the TFMC Group and the TEN Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided after the Effective Time, which services will be rendered solely for the benefit of the TFMC Group or the TEN Group, as the case may be. (b) The Parties agree as follows: (i) TFMC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information, other than such Privileged Information that relates solely to the TEN Business or TEN Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the TFMC Group or the TEN Group, and TEN Group agrees not to disclose any such Privileged Information to any Third Party; (ii) TEN shall 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 TEN Business, whether or not the Privileged Information is in the possession or under the control of a member of the TFMC Group or the TEN Group; TEN shall also 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 any TEN Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of a member of the TFMC Group or the TEN 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 VI to resolve any Disputes as to whether any information relates solely to the TFMC Business, solely to the TEN Business, or to both the TFMC Business and the TEN Business. (c) Subject to Sections 4.8(d) and 4.8(e), the Parties agree that they shall have a shared privilege or immunity with respect to all privileges not allocated pursuant to Section 4.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Group) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the written consent of the other Party. (d) If any dispute arises between the Parties, or any member 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, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests. (e) Upon receipt by any member of the TEN Group of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information ~~of the other~~ subject to a shared privilege or ~~if Vishay~~ immunity or ~~VPG,~~ as to which TFMC or any of ~~members of their respective Groups~~its Subsidiaries has the sole right hereunder to assert a privilege or immunity, ~~as the case may be,~~ or if TEN obtains knowledge that any of its, or any member of the TEN Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ TEN shall promptly ~~notify the other~~ provide written notice to TFMC of the existence of the request (which notice shall be delivered to TFMC no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide ~~the other~~ TFMC a reasonable opportunity to review the Information and to assert any rights it or they may ~~have~~ have, including under this Section ~~4.6~~ 4.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information~~. Vishay~~ . (f) Upon receipt by any member of the TFMC Group of any subpoena, discovery or ~~VPG~~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 TEN or any member of the TEN Group has the sole right hereunder to assert a privilege or immunity, ~~as the case may be, will not, and will cause the members of their respective Groups to not, produce~~ or ~~disclose to any third party~~ if TFMC obtains knowledge that any of its, or any member of the ~~other’s~~ TFMC 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, TFMC shall promptly provide written notice to TEN of the existence of the request (which notice shall be delivered to TEN no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide TEN a reasonable opportunity to review the Information and to assert any rights it or they may have, including under this Section ~~4.6 unless (i)~~ 4.8 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~Privileged Information. (cg) ~~Vishay’s~~ Any furnishing of, or access to, Information pursuant to this Agreement and the transfer of ~~books~~ the Assets and ~~records pertaining to~~ retention of the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution TEN Assets by TEN are made and done in reliance on ~~Vishay’s and VPG’s respective agreements, as~~ the agreement of the Parties set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 4.8 and in Section 4.9 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The Parties agree that their respective rights to any access to ~~Information~~information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to~~ between the ~~MGF Business or the Vishay Business~~ Parties and members of their respective Group pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 IV 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 ~~operate~~ promptly return or transfer, as the case may be, such Privileged Information to ~~reduce~~the Party who has the right to assert the privilege or immunity. (h) In furtherance of, ~~minimize or condition~~ and without limitation to, the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ Parties’ agreement under this Section ~~4.6~~4.8, TFMC and TEN 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 4 contracts

Samples: Separation and Distribution Agreement (Technip Energies N.V.), Separation and Distribution Agreement (Technip Energies B.V.), Separation and Distribution Agreement (TechnipFMC PLC)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that have been and shall be provided prior to the Effective Time have been and shall be rendered for the collective benefit of the Parties and their respective ~~rights~~ Subsidiaries, and ~~obligations~~ that each Party and its respective Subsidiaries should be deemed to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ be the ~~respective members of their respective Group~~ client with respect to such services for the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product~~ purposes of asserting all privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and ~~VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay~~ immunities that ~~could result in any waiver of any Privilege that could~~ may be asserted ~~by Vishay or any member of its Group~~ under ~~Applicable~~ applicable Law ~~and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority~~ in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupconnection therewith. (b) ~~Upon receipt~~ The Parties agree as follows: (i) Baxter shall 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 Baxter Business, whether or not the Privileged Information is in the possession or under the control of Baxter or a Baxter Subsidiary or Baxalta or a Baxalta Subsidiary. Baxter shall also 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 any Baxter Liabilities resulting from any Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of Baxter or a Baxter Subsidiary or Baxalta or a Baxalta Subsidiary. (ii) Baxalta shall 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 Baxalta Business, whether or not the Privileged Information is in the possession or under the control of Baxalta or a Baxalta Subsidiary or Baxter or a Baxter Subsidiary. Baxalta shall also 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 any Baxalta Liabilities resulting from any Proceedings that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of Baxalta or a Baxalta Subsidiary or Baxter or a Baxter Subsidiary. (iii) If Baxter and Baxalta 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 VII to resolve any disputes as to whether any information relates solely to the Baxter Business, solely to the Baxalta Business, or to both the Baxter Business and the Baxalta Business. (c) Subject to Sections 6.07(d) and 6.07(e), the Parties agree that they shall have a shared privilege or immunity with respect to all privileges not allocated pursuant to Section 6.07(b) and all privileges and immunities relating to any Proceedings or other matters that involve both Parties (or one or more of their respective Subsidiaries) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by ~~Vishay~~ either Party or ~~VPG~~any of its Subsidiaries without the consent of the other Party. (d) If any dispute arises between Baxter and Baxalta, or any of their respective Subsidiaries, regarding whether a privilege or immunity should be waived to protect or advance the ~~members~~ interests of either Party and/or their respective Subsidiaries, 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 ~~respective Groups~~other Party or any of its Subsidiaries; and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Further, as each Party specifically agrees that it shall not (and shall cause its Subsidiaries not to) withhold its consent to the ~~case may be,~~ waiver of a privilege or immunity for any purpose except to protect its own legitimate interests. (e) Upon receipt by Baxalta or by any of the Baxalta Subsidiaries of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~ information subject to a shared privilege or ~~if Vishay~~ immunity or ~~VPG,~~ as to which Baxter or any of ~~members of their respective Groups~~the Baxter Subsidiaries has the sole right hereunder to assert a privilege or immunity, ~~as the case may be,~~ or if Baxalta obtains knowledge that any of its, or the Baxalta Subsidiary’s, current or former ~~employee~~ 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 ~~Vishay~~ such Privileged Information, Baxalta shall promptly provide Notice to Baxter of the existence of the request (which Notice shall be delivered to Baxter no later than five (5) business days following the receipt of any such subpoena, discovery or ~~VPG~~other request) and shall provide Baxter a reasonable opportunity to review the information and to assert any rights it or they may have, as including under this Section 6.07 or otherwise, to prevent the ~~case may be, receives~~ production or disclosure of such Privileged Information. (f) Upon receipt by Baxter or by any of the Baxter Subsidiaries of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged Information~~ information subject to a shared privilege or immunity or as to which Baxalta or any of the ~~other~~Baxalta Subsidiaries has the sole right hereunder to assert a privilege or immunity, ~~Vishay~~ or ~~VPG~~if Baxter obtains knowledge that any of its, as or the ~~case~~ Baxter Subsidiary’s, current or former directors, officers, agents or employees have received any subpoena, discovery or other requests that may bereasonably be expected to result in the production or disclosure of such Privileged Information, Baxter shall promptly ~~notify the other~~ provide Notice to Baxalta of the existence of the request (which Notice shall be delivered to Baxalta no later than five (5) business days following the receipt of any such subpoena, discovery or other request) and shall provide ~~the other~~ Baxalta a reasonable opportunity to review the ~~Information~~ information and to assert any rights it or they may ~~have~~ have, including under this Section ~~4.6~~ 6.07 or ~~otherwise~~ 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 Baxter Liabilities and any corresponding legal rights, in the Baxalta Liabilities and any corresponding legal rights, in the Privileged Information and in the preservation of the protected status of the Privileged Information. ~~Vishay or VPG, as the case may be, will not,~~ The Parties have disclosed and exchanged and will ~~cause the members of their respective Groups to not, produce or~~ disclose ~~to any third party any of the other’s~~ and exchange certain Privileged Information ~~under this Section 4.6 unless (i)~~ between and among themselves in order to further the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5Parties’ common legal interests. (ch) ~~Vishay’s transfer of books and records pertaining~~ Any furnishing of, or access to, information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Baxter and ~~VPG’s respective agreements, as~~ Baxalta set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 6.07 and in Section 6.08 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The ~~access~~ Parties further agree that (i) the exchange by one Party (or any of its Subsidiaries) to ~~Information, witnesses and individuals being granted~~ the other Party (or any of its Subsidiaries) of any Privileged Information that should not have been transferred pursuant to ~~Sections 4.3 and 4.4 and~~ the ~~disclosure to VPG and Vishay~~ terms of ~~Privileged Information relating to the MGF Business or the Vishay Business pursuant to~~ this ~~Agreement in connection with the Separation and Distribution~~ Article VI shall not be ~~asserted by Vishay or VPG~~ deemed to ~~constitute, or otherwise deemed,~~ constitute a waiver of any ~~Privilege~~ privilege or immunity that has been or may be asserted under this ~~Section 4.6~~ Agreement or ~~otherwise. Nothing in this Agreement~~ otherwise with respect to such Privileged Information; and (ii) the Party receiving (or for which a Subsidiary has received) such Privileged Information shall ~~operate~~ promptly return such Privileged Information to ~~reduce~~the Party (or its applicable Subsidiary) who has the right to assert the privilege or immunity. (i) In furtherance of, ~~minimize or condition~~ and without limitation to, the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ Parties’ agreement under this Section ~~4.6~~6.07, Baxter and Baxalta 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 4 contracts

Samples: Separation and Distribution Agreement (Baxter International Inc), Separation and Distribution Agreement (Baxalta Inc), Separation and Distribution Agreement (Baxalta Inc)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG~~ 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 Pentair Group and the nVent Group, and that each of the members of the Pentair Group and the nVent Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided after the Effective Time, which services will be rendered solely for the benefit of the Pentair Group or the nVent Group, as the case may be. (b) The Parties agree as follows: (i) Pentair shall 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 Pentair Business and not to the Electrical Business, whether or not the Privileged Information is in the possession or under the control of any member of the Pentair Group or any member of the nVent Group. Pentair shall also 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 any Pentair Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Pentair Group or any member of the nVent Group; (ii) nVent shall 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 Electrical Business and not to the Pentair Business, whether or not the Privileged Information is in the possession or under the control of any member of the nVent Group or any member of the Pentair Group. nVent shall also 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 any nVent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the nVent Group or any member of the Pentair 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 VIII to resolve any disputes as to whether any information relates solely to the Pentair Business, solely to the Electrical Business, or to both the Pentair Business and the Electrical Business. (c) Subject to the remaining provisions of this Section 7.10, the Parties agree that ~~their respective rights and obligations~~ they shall have a shared privilege or immunity with respect to ~~maintain, preserve, assert or waive any or~~ all privileges ~~belonging~~ and immunities not allocated pursuant to ~~either party~~ Section 7.10(b) and all privileges and immunities relating to any Actions or ~~the respective~~ other matters that involve both Parties (or one or more members of their respective ~~Group with~~ Groups) and in respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of which both Parties have Liabilities under this ~~Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges~~Agreement, and ~~VPG shall take~~ that no ~~action (nor permit any member of its Group to take action)~~ such shared privilege or immunity may be waived by either Party without the prior written consent of ~~Vishay~~ the other Party and in accordance with applicable Law. (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 Groups, each Party agrees that ~~could result~~ 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any ~~Privilege~~ purpose except to protect its own legitimate interests. (e) Subject to Section 7.11, In the event of any adversarial Action or Dispute between Pentair and nVent, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 7.10(c); provided that ~~could~~ such waiver of a shared privilege shall be ~~asserted~~ effective only as to the use of information with respect to the Action or Dispute between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by ~~Vishay~~ either Party, or by any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any of the members of the respective Groups, as the case may be, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 7.10 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Pentair and nVent set forth in this Section 7.10 and in Section 7.11 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return such Privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in,~~ immunity. (h) In connection with any matter contemplated by Section 7.9 or ~~the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~7.10, the Parties agree to, and to cause the applicable members of their Group 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 4 contracts

Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (PENTAIR PLC), Separation and Distribution Agreement (nVent Electric PLC)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered, unless agreed otherwise, solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform or receive such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group; (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one (1) or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose, except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in information related to such Dispute, in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that (a) the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party, and (b) for the avoidance of doubt, the Parties will maintain the confidentiality of the information subject to the shared privilege from third parties in accordance with Section 6.9. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall (unless prohibited by Law) 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement between Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 4 contracts

Samples: Separation and Distribution Agreement (Vestis Corp), Separation and Distribution Agreement (Aramark), Separation and Distribution Agreement (Vestis Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to receive such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group; (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one (1) or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose, except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 4 contracts

Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Mdu Resources Group Inc), Separation and Distribution Agreement (Knife River Holding Co)

Privileged Matters. To allocate the interests of each Party with respect to privileged information, the Parties agree as follows: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ Oculus shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions business of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”))Oculus, whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of Oculus or Ruthigen. Oculus 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 ~~member of its Group; and~~ claims constituting Oculus Liabilities (~~x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~as defined herein), ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other Actions initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby Oculus, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group Oculus or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~Ruthigen. (b) Ruthigen shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the business of Ruthigen, whether or not the privileged information is in the possession of or under the control of Oculus or Ruthigen. Ruthigen 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 Ruthigen Liabilities (as defined herein), now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by Ruthigen, whether or not the privileged information is in the possession of or under the control of Oculus or Ruthigen. (c) Oculus and Ruthigen agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions of this Section 5.6, with respect to all privileges not allocated pursuant to the terms of Sections 5.6(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes or other matters which involve both Oculus and Ruthigen in respect of which Oculus and Ruthigen retain any responsibility or liability under this Agreement shall be subject to a shared privilege. (d) If the other Party has a shared privilege, no Party may waive any privilege which could be asserted under any applicable law, without the consent of the other Party, except to the extent reasonably required in connection with any litigation with third parties or as provided in Section 5.6(e) below. 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. (e) In the event of any litigation or dispute between the Parties or their Affiliates regarding the subject matter hereof, either Party may waive a privilege in which the other Party 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 Parties and/or their Affiliates, and shall not operate as a waiver of the shared privilege with respect to third parties. (f) If a dispute arises between the Parties regarding the subject matter hereof whether a privilege should be waived to protect or advance the interest of either Party, each Party 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. No Party will withhold consent to waiver for any purpose except to protect its own legitimate interests. (g) Upon receipt by ~~Vishay or VPG, or~~ any ~~of the members of the respective Groups, as the case may be,~~ Party of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information 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 ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 may have under this Section ~~4.6~~ 5.6 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain~~ the Parties maintaining the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~assert and maintain applicable privileges hereunder. The access to ~~Information~~information being granted, the agreement to provide witnesses and individuals ~~being granted pursuant to Sections 4.3 and 4.4~~ and the ~~disclosure to VPG and Vishay~~ transfer of ~~Privileged Information relating to~~ privileged information between the ~~MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution~~ Parties hereunder shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 4 contracts

Samples: Separation Agreement (Ruthigen, Inc.), Separation Agreement (Oculus Innovative Sciences, Inc.), Separation Agreement (Ruthigen, Inc.)

Privileged Matters. The parties hereto recognize that ------------------ legal and other professional services that have been and will be provided prior to the Distribution Date have been and will be rendered for the benefit of each of the members of the NDC Group, and the members of the Global Payments Group, and that each of the members of the NDC Group, and each of the members of the Global Payments Group should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable law. Except as otherwise specifically provided in the Ancillary Agreements, 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ NDC shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information that relates solely to the ~~Vishay Business or the MGF~~ NDC Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of NDC or Global Payments. NDC 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~claims constituting NDC Liabilities, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other proceedings initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby NDC, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group NDC or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~Global Payments. (b) Global Payments shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the Global Payments Business, whether or not the privileged information is in the possession of or under the control of NDC or Global Payments. Global Payments 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 Global Payments Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Global Payments, whether or not the privileged information is in the possession of Global Payments or under the control of NDC or Global Payments. (c) The parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 13.06, with respect to all privileges not allocated pursuant to the terms of Sections 13.06 (a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve NDC and Global Payments in respect of which such parties retain any responsibility or liability under this Agreement, shall be subject to a shared privilege among them. (d) No party hereto may waive any privilege which could be asserted under any applicable law and in which any other party hereto has a shared privileged, without the consent of the other party, which consent 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 subsection (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. (e) In the event of any litigation or dispute between or among any of the parties hereto, any party and a member of the Group of the other party, or a member of a Group of one party hereto and a member of a Group of the other party hereto, either such party may waive a privilege in which the other party 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 or among the relevant parties and/or members of their Groups, 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 hereto or their respective Group members regarding whether a privilege should be waived to protect or advance the interest of any party, each party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other parties, and shall not unreasonably withhold consent to any request for waiver by the other party. Each 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 ~~Vishay~~ any party hereto or ~~VPG, or~~ by any member of ~~the members of the respective Groups, as the case may be,~~ a Group thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG~~any party obtains knowledge that any of its, or any of ~~members of their respective Groups~~its Group members', ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or~~ arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 13.06 or otherwise to prevent the production or disclosure of ~~Privileged Information. Vishay or VPG~~such privileged information. (h) The transfer of all agreements, documents, books, records, files and other information pursuant to this Agreement is made in reliance on the agreement of NDC and Global Payments, as set forth in Sections 13.05 and 13.06, to maintain the ~~case may be~~confidentiality of privileged information and to assert and maintain all applicable privileges. The access to information being granted pursuant to Section 13.02 hereof, ~~will not~~the agreement to cooperate pursuant to Section 13.03 hereof, the furnishing of notices and documents and other cooperative efforts contemplated herein, and ~~will cause~~ the transfer of privileged information between and among the parties and the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 4 contracts

Samples: Distribution Agreement (Global Payments Inc), Distribution Agreement (Global Payments Inc), Distribution Agreement (Global Payments Inc)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the UpstreamCo Group, and that each of the members of the Parent Group and the UpstreamCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services shall be rendered solely for the benefit of the Parent Group or the UpstreamCo Group, as the case may be. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the UpstreamCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the UpstreamCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the UpstreamCo Group. (ii) UpstreamCo shall 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 UpstreamCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the UpstreamCo Group or any member of the Parent Group. UpstreamCo shall also 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 any UpstreamCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the UpstreamCo Group or any member of the Parent 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 Parent Business, solely to the UpstreamCo Business, or to both the Parent Business and the UpstreamCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any dispute arises between the Parties or any members of their respective Groups regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any member of its Group, 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 addition, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests. (e) In the event of any adversarial Action between Parent and UpstreamCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or otherwise to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Parent and UpstreamCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that (i) their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege or immunity that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing~~ , and (ii) in the event of any exchange by one Party to the other Party of any Privileged Information that should not have been transferred pursuant to the terms of this ~~Agreement~~ Article VI, the Party receiving such Privileged Information shall ~~operate~~ promptly return such Privileged Information to ~~reduce, minimize~~ and at the request of the Party that has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in,~~ immunity. (h) In connection with any matter contemplated by Section 6.7 or ~~the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~6.8, the Parties agree to, and to cause the applicable members of their Group to, use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements to implement and/or supersede the provisions of Section 6.7 or this Section 6.8 where necessary or useful for this purpose.

Appears in 4 contracts

Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Alcoa Corp), Separation and Distribution Agreement (Alcoa Upstream Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Kellanova Group and the WKKC Group, and that each of the members of the Kellanova Group and the WKKC Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered, unless agreed otherwise, solely for the benefit of the Kellanova Group or the WKKC Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform or receive such services. (b) The Parties agree as follows: (i) Xxxxxxxxx shall 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 Kellanova Business and not to the WKKC Business, whether or not the Privileged Information is in the possession or under the control of any member of the Kellanova Group or any member of the WKKC Group. Xxxxxxxxx shall also 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 any Kellanova Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Kellanova Group or any member of the WKKC Group; (ii) WKKC shall 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 WKKC Business and not to the Kellanova Business, whether or not the Privileged Information is in the possession or under the control of any member of the WKKC Group or any member of the Kellanova Group. WKKC shall also 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 any WKKC Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the WKKC Group or any member of the Kellanova 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 Kellanova Business, solely to the WKKC Business, or to both the Kellanova Business and the WKKC Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one (1) or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party or any member of their respective Groups, 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, condition or delay consent to any request for waiver by the other Party. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Kellanova and WKKC, or any members of their respective Groups, either Party may waive a privilege in information relating to the Dispute in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall (unless prohibited by Law) 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Xxxxxxxxx and WKKC set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 or common interest agreements where necessary or useful for this purpose.

Appears in 4 contracts

Samples: Separation and Distribution Agreement (Kellanova), Separation and Distribution Agreement (WK Kellogg Co), Separation and Distribution Agreement (WK Kellogg Co)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Separation Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the Arlo Group, and that each of the members of the Parent Group and the Arlo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Separation Time, which services will be rendered solely for the benefit of the Parent Group or the Arlo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Separation Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the Arlo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the Arlo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the Arlo Group; (ii) Arlo shall 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 Arlo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the Arlo Group or any member of the Parent Group. Arlo shall also 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 any Arlo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Arlo Group or any member of the Parent 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 VIII to resolve any disputes as to whether any information relates solely to the Parent Business, solely to the Arlo Business, or to both the Parent Business and the Arlo Business. (c) Subject to the remaining provisions of this Section 7.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 7.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and Arlo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 7.8(c); provided, that the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 7.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Parent and Arlo set forth in this Section 7.8 and in Section 7.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution shall~~ Agreement, is not intended to be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 7.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~7.8, 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 4 contracts

Samples: Master Separation Agreement, Master Separation Agreement (Arlo Technologies, Inc.), Master Separation Agreement (Netgear, Inc)

Privileged Matters. 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 Distribution Date have been and will be rendered for the benefit of each of the members of the MSG Group, and each of the members of the Spinco Group, and that each of the members of the MSG Group, and each of the members of the Spinco Group, should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable Law. 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ MSG shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging~~ in connection with privileged information that relates solely to ~~either party or~~ the ~~respective members of their respective Group~~ MSG Business (other than with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) Liabilities as to which ~~Vishay or VPG or their respective Groups would be entitled~~ Spinco is required to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)provide indemnification under Article III), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of MSG or Spinco. MSG 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay~~ claims constituting MSG Liabilities (including ~~any Person who~~Retained Claims Liabilities), ~~at the time of the communication~~or other Liabilities as to which it is required to provide indemnification under Article III, ~~was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationfuture, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group MSG or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~Spinco. (b) Spinco shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the Spinco Business (other than with respect to matters or claims that are Retained Claims Liabilities or other 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 MSG or Spinco. 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 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 Spinco, whether or not the privileged information is in the possession of Spinco or under the control of MSG or 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 4.5, with respect to all privileges not allocated pursuant to the terms of Sections 4.5(a) and (b). (d) No Party may waive any privilege which could be asserted under any applicable Law, and in which the other Party has a shared privilege, without the written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsection (e) below. (e) In the event of any litigation or dispute between or among the Parties, any Party and a Subsidiary of the other Party, or a Subsidiary of one Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party 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 Parties and/or their Subsidiaries, and shall not operate as a waiver of the shared privilege with respect to any Third-Party Claims. (f) If a dispute arises between or among the Parties or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of 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 ~~Vishay~~ any Party or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its or any of its Subsidiaries’ current or former ~~employee of Vishay or VPG, as the case may be, receives~~ Representatives have received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 4.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of MSG and ~~VPG’s respective agreements~~Spinco, as set forth in ~~Section 4.5~~ Sections 4.2, 4.3, 4.4 and this Section ~~4.6~~4.5, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and ~~4.4~~ 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 ~~disclosure to VPG~~ transfer of privileged information between and ~~Vishay of Privileged Information relating to~~ among the ~~MGF Business or the Vishay Business~~ Parties and their respective Subsidiaries, Affiliates and Representatives pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 4 contracts

Samples: Distribution Agreement (MSG Entertainment Spinco, Inc.), Distribution Agreement (Madison Square Garden Co), Distribution Agreement (MSG Entertainment Spinco, Inc.)

Privileged Matters. To allocate the interests of each party with respect to Privileged Information, the parties agree as follows: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ BOLC shall be entitled, in perpetuity, to ~~maintain~~control the assertion or waiver of all Privileges in connection with Privileged Information, ~~preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ which relates solely to the ~~Vishay Business or the MGF~~ BOLC Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such~~ the Privileged Information ~~(other than VPG Information)~~ is in the possession of ~~VPG~~ or under the control of BOLC or NUVOLA. BOLC 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time~~ claims constituting Liabilities of the ~~communication~~BOLC Group, ~~was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other Actions initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby BOLC, whether or not it the Privileged Information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group BOLC or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~NUVOLA. (b) NUVOLA shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information, which relates solely to the NUVOLA Business, whether or not the Privileged Information is in the possession of or under the control of BOLC or NUVOLA. NUVOLA 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 NUVOLA Liabilities, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by NUVOLA, whether or not the Privileged Information is in the possession of NUVOLA or under the control of BOLC or NUVOLA. (c) BOLC and NUVOLA agree that they shall have a shared Privilege, with equal right to assert or waive, subject to the restrictions of this Section 7.6, with respect to all Privileges not allocated pursuant to the terms of Sections 7.6(a) and (b). All Privileges relating to any claims, proceedings, litigation, disputes or other matters, which involve both BOLC and NUVOLA in respect of which BOLC and NUVOLA retain any responsibility or liability under this Agreement shall be subject to a shared Privilege. (d) No party may waive any Privilege which could be asserted under any applicable law, and in which the other party has a shared Privilege, without the consent of the other party, except to the extent reasonably required in connection with any litigation with third parties or as provided in Section 7.6(e) below. Such consent shall be in writing, or shall be deemed to be granted unless written objection is made within 20 days after notice upon the other party requesting such consent. (e) In the event of any litigation or dispute between a member of the BOLC Group and a member of the NUVOLA Group, either party may waive a Privilege in which the other party 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 BOLC Group and the NUVOLA Group, and shall not operate as a waiver of the shared Privilege with respect to third-parties. (f) If a dispute arises between the parties 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 ~~Vishay or VPG, or~~ any ~~of the members of the respective Groups, as the case may be,~~ party of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information 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 ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ party obtains knowledge that any of its current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 may have under this Section ~~4.6~~ 7.6 or otherwise to prevent the production or disclosure of such Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (ch) ~~Vishay’s~~ The transfer of ~~books~~ the NUVOLA Books and ~~records pertaining to~~ Records and the ~~MGF Business~~ BOLC Books and Records and other Information ~~to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to~~ between the ~~Distribution, VPG’s transfer of books~~ BOLC Group and ~~records pertaining to~~ the ~~Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are~~ NUVOLA Group is made in reliance on ~~Vishay’s~~ the agreement of BOLC and ~~VPG’s respective agreements~~NUVOLA, as set forth in ~~Section 4.5~~ Sections 7.5 and 7.6 and elsewhere in this ~~Section 4.6~~Agreement, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~assert and maintain applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 7.1 and ~~4.4~~ 7.2, the agreement to provide witnesses and individuals pursuant to Section 7.3 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to~~ between the ~~MGF Business or~~ BOLC Group and the ~~Vishay Business~~ NUVOLA Group pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 4 contracts

Samples: Separation and Distribution Agreement (Nuvola, Inc.), Separation and Distribution Agreement (Nuvola, Inc.), Separation and Distribution Agreement (Nuvola, Inc.)

Privileged Matters. The parties hereto recognize that legal and other professional services that have been and will be provided prior to the Distribution Date have been and will be rendered for the benefit of each of the Corporation, the members of the Media Information Group and the members of the New Ceridian Group, and that each of the Corporation, the members of the Media Information Group and the members of the New Ceridian Group should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable law. 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ The Corporation shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the ~~Vishay Business or the MGF~~ Media Information Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or ~~any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at~~ under the ~~time~~ control of the ~~communication~~Corporation or New Ceridian. The Corporation shall also be entitled, ~~was an employee~~ in perpetuity, to control the assertion or waiver of ~~Vishay~~ all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting Media Information Liabilities, now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other proceedings initiated against or ~~any member of its Group) and any Person who, at~~ by the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG InformationCorporation, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member of its Group; and (y) all communications subject to a Privilege occurring after~~ under the ~~Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time~~ control of the ~~communication, was an employee of VPG, any member of its Group~~ Corporation or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~New Ceridian. (b) New Ceridian shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the New Ceridian Business, whether or not the privileged information is in the possession of or under the control of the Corporation or New Ceridian. New Ceridian 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 New Ceridian Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by New Ceridian whether or not the privileged information is in the possession of or under the control of the Corporation or New Ceridian. (c) The parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 4.5, with respect to all privileges not allocated pursuant to the terms of Sections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both the Corporation and New Ceridian 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 hereto may waive any privilege which could be asserted under any applicable law, and in which any other party hereto has a shared privilege, without the consent of the other party, except to the extent reasonably required by the party seeking to waive the privilege in connection with any litigation with third parties (and then only to the limited extent necessary under the circumstances) or the resolution of any Tax Claim as defined in the Tax Matters Agreement or as provided in subsection (e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 20 days after notice upon the other party requesting such consent. (e) In the event of any litigation or dispute between or among any of the parties hereto, any party and a Subsidiary of another party hereto, or a Subsidiary of one party hereto and a Subsidiary of another party hereto, either such party may waive a privilege in which the other party has a shared privilege, without obtaining the written 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 parties and/or their Subsidiaries, 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 hereto or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of any party, each party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other parties, and shall not unreasonably withhold consent to any request for waiver by another party. Each 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 ~~Vishay~~ any party hereto or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ made in connection with then pending litigation which arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ party obtains knowledge that any of its or any of its Subsidiaries' current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests made in connection with pending litigation which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ such party shall promptly notify the other party or parties of the existence of the request and shall provide the other party or parties a reasonable opportunity to review the ~~Information~~ subpoena, discovery or other request and to assert any rights it or they may have under this Section ~~4.6~~ 4.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of the Corporation and ~~VPG’s respective agreements~~New Ceridian, as set forth in ~~Section 4.5~~ Sections 4.4 and ~~this Section 4.6~~4.5, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 4.1 and ~~4.4~~ 4.2 hereof, the agreement to provide witnesses and individuals or litigation assistance pursuant to Sections 2.9 and 3.3 hereof, the furnishing of notices and documents and other cooperative efforts contemplated by Section 3.3 29 hereof, and the ~~disclosure to VPG~~ transfer of privileged information between and ~~Vishay of Privileged Information relating to~~ among the ~~MGF Business or the Vishay Business~~ parties and their respective Subsidiaries pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 4 contracts

Samples: Distribution Agreement (New Ceridian Corp), Distribution Agreement (New Ceridian Corp), Distribution Agreement (New Ceridian Corp)

Privileged Matters. ERC and Evercel recognize that legal and other professional services that have been and will be provided prior to the Distribution Date have been and will be rendered for the benefit of each of ERC and Evercel and that each of ERC and Evercel should be deemed to be the client for the purposes of asserting all Privileges. To allocate the interests of each party in the Privileged Information, the parties agree as follows: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ ERC shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all ~~privileges belonging to either party or the respective members of their respective Group~~ Privileges in connection with ~~respect~~ Privileged Information which relates solely to the ~~Vishay Business or the MGF~~ ERC Retained Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such~~ the Privileged Information ~~(other than VPG Information)~~ is in the possession of ~~VPG~~ or under the control of ERC or Evercel. ERC 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~claims constituting ERC Retained Liabilities, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other proceedings initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby ERC, whether or not it the Privileged Information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group ERC or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~Evercel. (b) ~~Upon receipt~~ Evercel shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the Evercel Business, whether or not the Privileged Information is in the possession of or under the control of ERC or Evercel. Evercel 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 Evercel Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by ~~Vishay~~ Evercel, whether or ~~VPG~~not the Privileged Information is in the possession of Evercel or under the control of ERC or Evercel. (c) ERC and Evercel agree that they shall have a shared Privilege, with equal right to assert or waive, subject to the restrictions in this Section 7.07, with respect to all Privileges not allocated pursuant to the terms of Sections 7.07(a) and (b). All Privileges relating to any claims, proceedings, litigation, disputes or other matters which involve each of ERC and Evercel in respect of which ERC and Evercel retain any responsibility or liability under this Agreement shall be subject to a shared Privilege. (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, except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsection (e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 20 days after notice upon the other party requesting such consent. (e) In the event of any litigation or dispute between ERC and Evercel, or any of them, any party may waive a Privilege in which any other party has a shared Privilege, without obtaining the ~~members~~ consent of the ~~respective Groups~~other party, provided that such waiver of a shared Privilege shall be effective only as to the ~~case may be~~use of Information with respect to the litigation or dispute between such parties, and shall not operate as a waiver of the shared Privilege with respect to third-parties. (f) If a dispute arises between the parties regarding whether a Privilege should be waived to protect or advance the interest of any party, each party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other parties, and shall not unreasonably withhold consent to any request for waiver by the other parties. 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 any party of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged~~ Information of subject to a shared Privilege or as to which any other party has the ~~other~~ sole right hereunder to assert a Privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ party obtains knowledge that any of its current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 may have under this Section ~~4.6~~ 7.07 or otherwise to prevent the production or disclosure of such Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (ch) ~~Vishay’s~~ The transfer of ~~books~~ the Evercel Books and ~~records pertaining to~~ Records and the ~~MGF Business~~ ERC Books and Records and other Information ~~to VPG~~between ERC, ~~Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books~~ Evercel and ~~records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are~~ their respective Subsidiaries is made in reliance on ~~Vishay’s~~ the agreement of ERC and ~~VPG’s respective agreements~~Evercel, as set forth in ~~Section 4.5~~ Sections 7.06 and ~~this Section 4.6~~7.07, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 7.01 and ~~4.4~~ 7.02, the agreement to provide witnesses and individuals pursuant to Section 7.03 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to the MGF Business or the Vishay Business~~ between ERC, Evercel and their respective Subsidiaries pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 4 contracts

Samples: Distribution Agreement (Energy Research Corp /Ny/), Tax Sharing Agreement (Evercel Inc), Distribution Agreement (Evercel Inc)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges~~ Distribution (~~individually, a “Privilege”), shall be governed~~ whether by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house outside counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel or other legal professionals) have been and ~~former in-house counsel who are employees~~ will be rendered for the collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Honeywell Group and the SpinCo Group, and that each of the members of the Honeywell Group and the SpinCo Group shall be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Distribution, which services will be rendered solely for the benefit of the Honeywell Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) Honeywell shall 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 Honeywell Business and not to the SpinCo Business, whether or not the privileged Information is in the possession or under the control of any member of the Honeywell Group or any member of the SpinCo Group. Honeywell shall also 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 any Honeywell Assets or Honeywell Liabilities and not any SpinCo Assets or SpinCo Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Honeywell Group or any member of the SpinCo Group. (ii) SpinCo shall 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 SpinCo Business and not to the Honeywell Business, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Honeywell Group. SpinCo shall also 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 any SpinCo Assets or SpinCo Liabilities and not any Honeywell Assets or Honeywell Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any 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) Subject to the remaining provisions of this Section 8.08, the Parties agree that Honeywell shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities not allocated pursuant to Section 8.08(b) in connection with any Actions or threatened or contemplated Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this 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 mutually acceptable common interest agreement so as to maintain to the extent practicable any applicable attorney-client privilege or work product immunity of any member of either Group. (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 or any member of their respective Groups, 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 the members of its Group and (iii) not unreasonably withhold, delay or condition consent to any request for waiver by the other Party. (e) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 8.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged~~ such privileged Information~~. Vishay~~ ; provided that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this Section ~~4.6 unless (i)~~ 8.08 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (cf) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 4 contracts

Samples: Separation and Distribution Agreement (Resideo Technologies, Inc.), Separation and Distribution Agreement (Resideo Technologies, Inc.), Separation and Distribution Agreement (Resideo Technologies, Inc.)

Privileged Matters. (a) ~~Vishay~~ Each of NiSource Services and ~~VPG agree that their respective rights and obligations~~ Columbia Services agrees to maintain, ~~preserve,~~ preserve and assert ~~or waive any or~~ all ~~privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business~~privileges, including ~~but not limited~~ privileges arising under or relating to the attorney-~~client,~~ client relationship (which shall include the attorney-client and work product ~~privileges~~ privileges), not heretofore waived, that relate to the Columbia Business or ~~any other applicable privileges~~ the NiSource Business during the Service Period (~~individually,~~ each a “Privilege”), . Each party hereto acknowledges and agrees that any costs associated with asserting any Privilege shall be ~~governed~~ borne by the ~~provisions of this Section 4.6~~party requesting that such Privilege be asserted. ~~With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive~~ Each party hereto agrees that neither it nor any ~~or all Privileges, and VPG shall take no action (nor permit any member~~ of its ~~Group to take action) without the prior written consent of Vishay that could result in any waiver of~~ Affiliates shall waive any Privilege that could be asserted by ~~Vishay~~ the other party hereto or any ~~member~~ of its ~~Group~~ Affiliates under ~~Applicable~~ applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of ~~VPG that could result in any waiver of any Privilege that could~~ the other party (which consent shall not be ~~asserted by VPG~~ unreasonably withheld, conditioned or ~~any member of its Group under Applicable Law and this Agreement~~delayed). The rights and obligations created by this Section ~~4.6~~ 5.4 shall apply to all ~~Information~~ information relating to the NiSource Business or the Columbia Business as to which, but for the performance of this Agreement and the transactions contemplated by this Agreement, any party would have been entitled to assert or did assert the protection of a Privilege (“Privileged Information”~~) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect~~), ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to~~ including (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Distribution Date but which, ~~whether or not such Information (other than VPG Information)~~ after the Distribution Date is in the possession of ~~VPG or~~ any ~~member of its Group;~~ party and (xii) all ~~communications subject to a Privilege between counsel for Vishay (including any Person who~~information generated, ~~at the time of the communication, was an employee of Vishay~~ received or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring arising after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupDate. (b) Upon receipt by ~~Vishay or VPG, or any of the members of the respective Groups, as the case may be,~~ either party of any subpoena, discovery or other request ~~from~~ that may call for the production or disclosure of Privileged Information or if any ~~third~~ party obtains knowledge that ~~actually~~ any current or ~~arguably calls~~ former director, officer or employee of NiSource Services, Columbia Services or any of their respective Affiliates has received any subpoena, discovery or other request that may call for the production or disclosure of Privileged Information of the other ~~or if Vishay or VPG,~~ party or any of ~~members of their respective Groups~~such other party’s Affiliates, ~~as the case may be, obtains knowledge that any current or former employee of Vishay or VPG, as the case may be, receives any subpoena, discovery or other request from any third~~ such party ~~that actually or arguably calls for the production or disclosure of Privileged Information of the other, Vishay or VPG, as the case may be,~~ shall notify promptly ~~notify~~ the other party hereto of the existence of the request and shall provide the other party hereto a reasonable opportunity to review the ~~Information~~ information and to assert any rights it or any of its Affiliates may have under this Section ~~4.6~~ 5.4 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Each party hereto agrees that it will ~~not, and will cause the members of their respective Groups to not,~~ not produce or ~~disclose to any third party~~ disclose, or permit any of its Affiliates to produce or disclose, any information that may be covered by a Privilege of the ~~other~~other party hereto or any of such other party’s ~~Privileged Information~~ Affiliates under this Section ~~4.6~~ 5.4 unless (i) the ~~non-disclosing~~ other party has provided its ~~express~~ written consent to such production or disclosure (which consent shall not be unreasonably withheld, conditioned or delayed) or (ii) a court of competent jurisdiction has entered an a final, nonappealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable ~~privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~Privilege. (c) ~~Vishay’s~~ The access to and transfer of ~~books and records pertaining~~ all Privileged Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of NiSource Services and ~~VPG’s respective agreements, as~~ Columbia Services set forth in Section ~~4.5~~ 5.2 and this Section ~~4.6,~~ 5.4 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges~~ applicable privileges. The parties agree that ~~may belong~~ their respective rights to any access to or ~~be asserted by Vishay or VPG~~transfer of Privileged Information, ~~as the case may be. The~~ access to ~~Information~~Persons, ~~witnesses~~ the furnishing of notices and ~~individuals being granted pursuant to Sections 4.3~~ documents and ~~4.4 and~~ other cooperative efforts between the ~~disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to~~ Parties contemplated by this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted ~~to Vishay and VPG in~~under, or the obligations imposed ~~upon Vishay and VPG~~ by, this Section ~~4.6~~5.4. (d) If any dispute arises between NiSource Services and any Columbia Services regarding whether a Privilege should be waived to protect or advance the interests of either NiSource Services or Columbia Services, each party hereto agrees that it shall (i) negotiate with the other party hereto in good faith, (ii) endeavor to minimize any prejudice to the rights of the other party hereto and (iii) not unreasonably withhold, condition or delay consent to any request for waiver by the other party hereto. Nevertheless, each party is permitted to withhold its consent to the waiver of a privilege for the purpose of protecting its own legitimate interests.

Appears in 4 contracts

Samples: Transition Services Agreement (Columbia Pipeline Group, Inc.), Transition Services Agreement (Columbia Pipeline Group, Inc.), Transition Services Agreement (Columbia Pipeline Group, Inc.)

Privileged Matters. (a) ~~Vishay and VPG agree that their respective rights and obligations to maintain~~The Parties recognize, ~~preserve, assert or waive any or~~ solely for the purposes of asserting all privileges ~~belonging to either party or the respective members of their respective Group with respect~~ and protections that may be asserted under applicable Law, that legal and other professional services that have been and will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered, unless agreed otherwise, solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform or receive such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities not allocated pursuant to Section 6.8(b) or Section 6.10 and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one (1) or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose, except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in information relating to the Dispute in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that (a) the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party, and (b) for the avoidance of doubt, the Parties will maintain the confidentiality of the information subject to the shared privilege from third parties in accordance with Section 6.9. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall (unless prohibited by Law) 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement between Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 3 contracts

Samples: Separation and Distribution Agreement (RXO, Inc.), Separation and Distribution Agreement (Rxo, LLC), Separation and Distribution Agreement (Rxo, LLC)

Privileged Matters. 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 Distribution Date have been and will be rendered for the benefit of each of the members of the Cablevision Group, and the members of the AMC Group, and that each of the members of the Cablevision Group, and each of the members of the AMC Group should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable Law. 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ Cablevision shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging~~ in connection with privileged information which relates solely to ~~either party or~~ the ~~respective members of their respective Group~~ Cablevision Business (other than with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) Liabilities as to which ~~Vishay or VPG or their respective Groups would be entitled~~ AMC is required to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)provide indemnification under Article III), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of Cablevision or AMC. 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay~~ claims constituting Cablevision Liabilities (including ~~any Person who~~Retained Claims Liabilities), ~~at the time of the communication~~or other Liabilities as to which it is required to provide indemnification under Article III, ~~was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationfuture, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group Cablevision or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~AMC. (b) 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 AMC 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 Cablevision or AMC. AMC 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 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 AMC, whether or not the privileged information is in the possession of AMC or under the control of Cablevision or AMC. (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 4.5, with respect to all privileges not allocated pursuant to the terms of Sections 4.5(a) and (b). (d) No Party may waive any privilege which could be asserted under any applicable Law, and in which the other Party has a shared privileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsection (e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 20 days after notice upon the other Party requesting such consent. (e) In the event of any litigation or dispute between or among the Parties, any Party and a Subsidiary of the other Party, or a Subsidiary of one Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party 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 Parties and/or their Subsidiaries, and shall not operate as a waiver of the shared privilege with respect to any Third-Party Claims. (f) If a dispute arises between or among the Parties or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of 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 ~~Vishay~~ any Party or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its or any of its Subsidiaries’ current or former ~~employee of Vishay or VPG, as the case may be, receives~~ Representatives have received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 4.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Cablevision and ~~VPG’s respective agreements~~AMC, as set forth in ~~Section 4.5~~ Sections 4.2, 4.4 and ~~this Section 4.6~~4.5, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and ~~4.4~~ 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 ~~disclosure to VPG~~ transfer of privileged information between and ~~Vishay of Privileged Information relating to~~ among the ~~MGF Business or the Vishay Business~~ Parties and their respective Subsidiaries, Affiliates and Representatives pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Distribution Agreement (AMC Networks Inc.), Distribution Agreement (Cablevision Systems Corp /Ny), Distribution Agreement (AMC Networks Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~YUM Group and the SpinCo Group, and that each of the members of the YUM Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the YUM Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) YUM shall 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 YUM Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the YUM Group or any member of the SpinCo Group. YUM shall also 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 any YUM Specified Actions or to any YUM Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the YUM Group or any member of the SpinCo Group; and (ii) SpinCo shall 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 SpinCo Business and not to the YUM Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the YUM Group. SpinCo shall also 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 any SpinCo Specified Actions or to any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the YUM 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, 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 YUM Business, solely to the SpinCo Business, or to both the YUM Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both YUM and SpinCo (or one (1) or more members of their respective Groups) and in respect of which both YUM and SpinCo have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by any Party (or another member of its Group) without the written consent of each other Party. (d) If any 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 any Party and/or any other member of their respective Groups, each Party agrees that it shall (i) negotiate with each other Party in good faith; (ii) endeavor to minimize any prejudice to the rights of any other Party (and the other members of the Group); and (iii) not unreasonably withhold consent to any request for waiver by any other Party. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) Subject to Section 6.9, in the event of any adversarial Action or Dispute between YUM and SpinCo, or any other members of their respective Groups, any Party may waive a privilege in which any other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action or Dispute between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by any Party, or by any other member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its, or any other member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall promptly notify ~~the~~ each 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~~ each other Party a reasonable opportunity to review the Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreements of YUM and the SpinCo Parties set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. (h) The Parties acknowledge that members of the YUM Group and members of the SpinCo Group may have or develop interests adverse to each other following the Effective Time. ~~Nothing~~ Each Party hereby waives (i) any and all current and future objections to any outside counsel that represented YUM or any of its Affiliates prior to the Effective Time from continuing to represent or in the future representing their respective clients or any Party (or any members of such Party’s Group) in any matter, including matters in which members of the YUM Group and members of the SpinCo Group are adverse and Disputes relating to this Agreement ~~shall operate~~ or any Ancillary Agreement and (ii) all current and future rights to ~~reduce~~seek disqualification, ~~minimize~~ whether based on the possession or ~~condition~~ disclosure of confidential information or otherwise, of any such outside counsel from any representation of their respective clients or any Party (or any members of such Party’s Group) in any matter, including matters in which members of the ~~rights granted~~ YUM Group and members of the SpinCo Group are adverse and Disputes relating to ~~Vishay and VPG in,~~ this Agreement or ~~the obligations imposed upon Vishay and VPG by,~~ any Ancillary Agreement. (i) In connection with any matter contemplated by Section 6.7 or this Section ~~4.6~~6.8, 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 3 contracts

Samples: Separation and Distribution Agreement (Yum Brands Inc), Separation and Distribution Agreement (Yum China Holdings, Inc.), Separation and Distribution Agreement (Yum China Holdings, Inc.)

Privileged Matters. ~~(a) Vishay and VPG agree that their respective rights and obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or~~ To allocate the ~~respective members~~ interests of ~~their respective Group with respect to~~ each Party in the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which ~~Vishay or VPG or their respective Groups would be~~ either Party is entitled to assert or a privilege in connection with professional services that have ~~asserted a Privilege without regard~~ been provided prior to the ~~effect, if any,~~ Distribution Effective Time for the collective benefit of each of the ~~Separation~~ members of the Distributing Group and the ~~Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria~~ members of the ~~preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”))~~Publishing Group, whether or not such a privilege exists or the existence of which is in dispute, the Parties agree as follows: (a) Subject to Section 6.8(c), the Distributing Group shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information ~~(other than VPG Information)~~ which relates to the Distributing Business and not to the Publishing Business, whether or not the privileged Information is in the possession of ~~VPG~~ or under the control of members of the Distributing Group or the Publishing Group. The Distributing Group 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 the applicable member of ~~its Group;~~ the Distributing Group reasonably anticipates may become, a Distributing Liability and ~~(x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~that is not also, at or that the ~~time~~ applicable member of the ~~communication~~Distributing Group reasonably anticipates will not become, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationa Publishing Liability, whether or not it the privileged Information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time members of the ~~communication, was an employee of VPG, any member of its~~ Distributing Group or the ~~MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its~~ Publishing Group. (b) ~~Upon receipt by Vishay~~ Subject to Section 6.8(c), the Publishing Group shall be entitled, in perpetuity, to control the assertion or ~~VPG~~waiver of all privileges in connection with privileged Information which relates to the Publishing Business and not to the Distributing Business, whether or not the privileged Information is in the possession of or under the control of members of the Distributing Group or the Publishing Group. The Publishing Group 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 the applicable member of the Publishing Group reasonably anticipates may become, a Publishing Liability and that is not also, or that the applicable member of the Publishing Group reasonably anticipates will not become, a Distributing Liability, whether or not the privileged Information is in the possession of or under the control of members of the Distributing Group or the Publishing Group. (c) Distributing shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates to the Transactions, it being understood and agreed that the expectation and intention as between Distributing and Publishing with respect to any communications between advisors to Distributing and Publishing occurring up to and including the Distribution Date in connection with the Transactions are that the privilege and the expectation of client confidence belong exclusively to Distributing. (d) Subject to the restrictions in this Section 6.8, Distributing and Publishing agree that both Groups shall have equal right to assert all privileges not allocated pursuant to the terms of Section 6.8(a), Section 6.8(b) or Section 6.8(c) with respect to Information as to which the members of both the Distributing Group and the Publishing Group may assert a privilege (“Shared Privileges”). (e) Each Party shall ensure that no member of its Group may waive any Shared Privilege, without the written consent of the other Party or the applicable member of such other Party’s Group which shall not be unreasonably withheld or delayed. (f) In the event of an Action between one or more members of the Publishing Group, on the one hand, and one or more members of the Distributing Group, on the other hand, the applicable members of each Group shall have the right to use any Information that may be subject to a Shared Privilege, without obtaining the consent of the applicable members of the other Group, it being understood and agreed that the use of Information with respect to the Action or other dispute between the members of the Publishing Group, on the one hand, and the members of the Distributing Group, on the other hand, shall not operate as or be used by either Group as a basis for asserting a waiver of such Shared Privilege with respect to Third Parties. (g) If a dispute arises between any member of the Publishing Group, on the one hand, and any member of the Distributing Group, on the other hand, regarding whether a Shared Privilege should be waived to protect or advance the interest of either Group, each Party agrees that it shall, and shall cause the members of its respective ~~Groups~~Group to, as negotiate in good faith and endeavor to minimize any prejudice to the ~~case may be~~rights of the other Group, and shall not unreasonably withhold consent to any request for waiver by the other Group. Each Party specifically agrees that it shall, and shall cause the members of its respective Group to, not withhold consent to waiver for any purpose except to protect its own legitimate interests. (h) Upon receipt by either Party or by any member of its Group of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged~~ Information of subject to a 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 ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its Group’s current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably ~~calls~~ call for the production or disclosure of ~~Privileged Information~~ such privileged Information, such Party shall, and shall cause the members of ~~the other~~its respective Group to, ~~Vishay or VPG, as the case may be, shall~~ promptly notify the other Party or the applicable member of such other Party’s Group of the existence of the request and shall provide the other Party or the applicable member of such other Party’s Group a reasonable opportunity to review the Information and to assert any rights it or any member of its Group may have under this Section ~~4.6~~ 6.8 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. ~~Vishay or VPG~~Each Group shall bear its own expenses in connection with any such request. (i) The transfer of all Records and other Information and each Group’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 the Parties, as ~~the case may be~~set forth in this Article VI, ~~will not~~to, and ~~will~~ to cause the members of their respective Groups ~~to not~~to, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of ~~such~~ the Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ Information being granted ~~pursuant to Sections 4.3 and 4.4~~ and the ~~disclosure~~ agreement to ~~VPG~~ provide witnesses herein, the furnishing of notices and ~~Vishay~~ documents and other cooperative efforts contemplated hereby, and the transfer of ~~Privileged~~ privileged Information ~~relating to~~ between and among the ~~MGF Business or the Vishay Business~~ Parties and members of their respective Groups pursuant ~~to this Agreement in connection with the Separation and Distribution~~ hereto shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Tribune Publishing Co), Separation and Distribution Agreement (Tribune Publishing Co)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG~~ other professional services that have been and shall be provided prior to the Effective Time solely for the benefit of the Illumina Group and the GRAIL Group, as the case may be. (b) The Parties agree ~~that their respective rights and obligations~~ as follows: (i) Illumina shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party~~ and immunities in connection with any Privileged Information currently under its control or the ~~respective members~~ control of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (ii) GRAIL shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and ~~(x) all communications subject to a Privilege between counsel for Vishay (including~~ immunities in connection with any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information ~~of VPG and~~ currently under its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group control or the ~~MGF Business regardless~~ control of ~~whether such employee was, is or becomes an employee of Vishay or any~~ a member of its Group. (bc) If any dispute arises between the Parties, or any member of their respective Groups, 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests. (d) Upon receipt by ~~Vishay or VPG, or~~ any member of the ~~members of the respective Groups, as the case may be,~~ GRAIL Group of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information ~~of the other~~ subject to a shared privilege or ~~if Vishay~~ immunity or ~~VPG,~~ as to which Illumina or any of ~~members of their respective Groups~~its Subsidiaries has the sole right hereunder to assert a privilege or immunity, ~~as the case may be,~~ or if GRAIL obtains knowledge that any of its, or any member of the GRAIL Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ GRAIL shall promptly ~~notify the other~~ provide written notice to Illumina of the existence of the request (which notice shall be delivered to Illumina no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide ~~the other~~ Illumina a reasonable opportunity to review the Information and to assert any rights it or they may ~~have~~ have, including under this Section ~~4.6~~ 6.9 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (e) Upon receipt by any member of the Illumina 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 GRAIL or any member of the GRAIL Group has the sole right hereunder to assert a privilege or immunity, or if Illumina obtains knowledge that any of its, or any member of the Illumina 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, Illumina shall promptly provide written notice to GRAIL of the existence of the request (which notice shall be delivered to GRAIL no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide GRAIL a reasonable opportunity to review the Information and to assert any rights it or they may have, including under this Section 6.9 or otherwise, to prevent the production or disclosure of such Privileged Information. (f) Any furnishing of, or access to, Information pursuant to this Agreement are made and done in reliance on the agreement of the Parties set forth in this Section 6.9 and in Section 6.10 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. . (g) Nothing in this ~~Agreement~~ Section 6.9 shall ~~operate~~ be deemed to ~~reduce~~supersede the Joint Defense and Confidentiality Agreements, ~~minimize or condition~~ which the ~~rights granted to Vishay~~ Parties acknowledge and ~~VPG in, or~~ agree shall continue in full force and effect from the ~~obligations imposed upon Vishay and VPG by, this Section 4.6~~Effective Time.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Illumina, Inc.), Separation and Distribution Agreement (GRAIL, Inc.), Separation and Distribution Agreement (Grail, LLC)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the CoalCo Group, and that each of the members of the Parent Group and the CoalCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services shall be rendered solely for the benefit of the Parent Group or the CoalCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the Coal Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the CoalCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the CoalCo Group. (ii) CoalCo shall 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 Coal Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the CoalCo Group or any member of the Parent Group. CoalCo shall also 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 any Coal Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the CoalCo Group or any member of the Parent 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. The Parties shall use the procedures set forth in Article VII to resolve any disputes as to whether any information relates solely to the Parent Business, solely to the Coal Business, or to both the Parent Business and the Coal Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any dispute arises between the Parties or any members of their respective Groups regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party and/or any member of its Group, 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 addition, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests. (e) In the event of any adversarial Action between Parent and CoalCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or otherwise to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Parent and CoalCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that (i) their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege or immunity that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing~~ , and (ii) in the event of any exchange by one Party to the other Party of any Privileged Information that should not have been transferred pursuant to the terms of this ~~Agreement~~ Article VI, the Party receiving such Privileged Information shall ~~operate~~ promptly return such Privileged Information to ~~reduce, minimize~~ and at the request of the Party that has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in,~~ immunity. (h) In connection with any matter contemplated by Section 6.7 or ~~the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~6.8, the Parties agree to, and to cause the applicable members of their Group to, use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense and/or common interest agreements to implement and/or supersede the provisions of Section 6.7 or this Section 6.8 where necessary or useful for this purpose.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (CNX Resources Corp), Separation and Distribution Agreement (CNX Resources Corp), Separation and Distribution Agreement (CONSOL Mining Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges~~ Distribution (~~individually, a “Privilege”), shall be governed~~ whether by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house outside counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel or other legal professionals) have been and ~~former in-house counsel who are employees~~ will be rendered for the collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~DTE Energy Group and the DT Midstream Group, and that each of the members of the DTE Energy Group and the DT Midstream Group shall be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Distribution, which services will be rendered solely for the benefit of the DTE Energy Group or the DT Midstream Group, as the case may be. (b) The Parties agree as follows: (i) DTE Energy shall 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 DTE Energy Business and not to the operations of the DT Midstream Business, whether or not the privileged Information is in the possession or under the control of any member of the DTE Energy Group or any member of the DT Midstream Group. DTE Energy shall also 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 any DTE Energy Assets or DTE Energy Liabilities and not any DT Midstream Assets or DT Midstream Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the DTE Energy Group or any member of the DT Midstream Group; (ii) DT Midstream shall 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 operations of the DT Midstream Business and not to the DTE Energy Business, whether or not the privileged Information is in the possession or under the control of any member of the DT Midstream Group or any member of the DTE Energy Group. DT Midstream shall also 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 any DT Midstream Assets or DT Midstream Liabilities and not any DTE Energy Assets or DTE Energy Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the DT Midstream Group or any member of the DTE Energy 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) Subject to the remaining provisions of this Section 7.08, the Parties agree that DTE Energy shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities not allocated pursuant to Section 7.08(b) in connection with any Actions or threatened or contemplated Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement. Upon the reasonable request of DTE Energy or DT Midstream, 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, DTE Energy and DT Midstream will enter into a mutually acceptable common interest agreement to maintain to the extent practicable any applicable attorney-client privilege, work product immunity or similar privilege or immunity of any member of either Group. (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 or any member of their respective Groups, 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 the members of its Group and (iii) not unreasonably withhold, delay or condition consent to any request for waiver by the other Party. (e) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 7.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged~~ such privileged Information~~. Vishay~~ ; provided that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this Section ~~4.6 unless (i)~~ 7.08 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (cf) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Dte Energy Co), Separation and Distribution Agreement (DT Midstream, Inc.), Separation and Distribution Agreement (DT Midstream, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that certain legal and ~~VPG agree that their respective rights~~ other professional services (both internal and ~~obligations~~ external) have been and will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ and after the ~~respective~~ Distribution Date and have been and will be rendered for the collective benefit of each of the members of ~~their respective~~ the Cadbury plc Group and the DPS Group, and that each of the members of the Cadbury plc Group and the DPS Group should be deemed to be the client with respect to such services for the ~~Vishay Business or~~ purposes of asserting all privileges which may be asserted under applicable Law;provided that with respect to such services the ~~MGF Business, including but~~ Parties agree as follows: (i) the Parties shall not ~~limited~~ be entitled to assert privilege with respect to such legal and other professional services provided prior to the ~~attorney-client, work product privileges or any~~ Distribution Date against the other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay Party or any member of ~~its Group under Applicable Law and this Agreement. With respect to Privileged Information~~ the other Party’s Group; (ii) CS shall be entitled, on behalf of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG itself or any member of ~~its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply~~ the Cadbury plc Group, in perpetuity, to control the assertion or waiver of all ~~Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard~~ privileges in connection with privileged information to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence extent relating to the ~~MGF Business (“VPG Information”))~~Cadbury plc Business, whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of CS or DPS. CS shall also be entitled, on behalf of itself or any member of ~~its~~ the Cadbury plc Group~~; and (x)~~ , in perpetuity, to control the assertion or waiver of all ~~communications~~ privileges in connection with privileged information that relates solely to the subject ~~to a Privilege between counsel for Vishay (including~~ matter of any ~~Person who~~claims constituting Cadbury plc Liabilities, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other proceedings initiated against or by any member of ~~its~~ the Cadbury plc Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it the privileged information is in the possession of ~~Vishay~~ or under the control of CS or DPS; (iii) DPS shall be entitled, on behalf of itself or any member of ~~its~~ the DPS Group~~; and (y)~~ , in perpetuity, to control the assertion or waiver of all ~~communications subject~~ privileges in connection with privileged information to ~~a Privilege occurring after~~ the ~~Distribution between counsel for~~ extent relating to the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ Beverages Business, whether or not the privileged information is in the possession of ~~Vishay) and any Person who~~or under the control of CS or DPS. DPS shall also be entitled, ~~at the time~~ on behalf of ~~the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay~~ itself or any member of ~~its~~ the DPS Group, 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 Beverages Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by any member of the DPS Group, whether or not the privileged information is in the possession of or under the control of CS or DPS; and (iv) the Parties shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 8.07, with respect to all privileges not allocated pursuant to the terms of Section 8.07(a)(ii) and (iii). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve members of both the Cadbury plc Group and the DPS Group in respect of which such Parties retain any responsibility or Liability under this Agreement, shall be subject to a shared privilege among them. (b) No Party may waive any privilege which could be asserted under any applicable Law, and in which the 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 Section 8.07(c) or Section 8.07(d) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 10 Business Days after notice upon the other Party requesting such consent. (c) In the event of any litigation or dispute between or among the Parties, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such Group has a shared privilege, without obtaining the consent of the other Party; provided that such waiver of a shared privilege shall be effective only as to the use of Information with respect to the litigation or dispute between the relevant Parties and/or the applicable members of their respective Group’s, and shall not operate as a waiver of the shared privilege with respect to third parties. (d) If a dispute arises between or among the Parties or any member of their respective Groups regarding whether a privilege should be waived to protect or advance the interest of 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 waiver by another Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests. (e) Upon receipt by ~~Vishay~~ any Party or ~~VPG, or~~ by any member of ~~the members of the respective Groups, as the case may be,~~ a Party’s Group of any subpoena, ~~discovery~~ discovery, court order or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged~~ Information of subject to a shared privilege or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its or any member of its Group’s current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 8.07 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, a waiver of any Privilege that has been or may be asserted under this Section 4.6 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Dr Pepper Snapple Group, Inc.), Separation and Distribution Agreement (Dr Pepper Snapple Group, Inc.), Separation and Distribution Agreement (Dr Pepper Snapple Group, Inc.)

Privileged Matters. The Parties recognize that legal and other professional services that have been and will be provided prior to the Separation (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 Select Group and the Concentra Group, and that each of the members of the Select Group and the Concentra Group shall be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Separation, which services will be rendered solely for the benefit of the Select Group or the Concentra Group, as the case may be. (a) ~~Vishay and VPG~~ The Parties agree ~~that their respective rights and obligations~~ as follows: (i) Select shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ and immunities in connection with ~~respect~~ any privileged Information that relates solely to the ~~Vishay~~ Select Business or and not to the ~~MGF~~ Concentra Business, ~~including but~~ whether or not ~~limited to~~ the ~~attorney-client, work product privileges~~ privileged Information is in the possession or ~~any other applicable privileges (individually, a “Privilege”), shall be governed by~~ under the ~~provisions~~ control of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of ~~its~~ the Select Group ~~to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay~~ or any member of ~~its Group~~ the Concentra Group. Select shall also 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 any Select Business and not any Concentra Business in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under ~~Applicable Law and this Agreement. With respect to Privileged Information~~ the control of ~~VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit~~ any member of ~~its~~ the Select Group ~~to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG~~ or any member of ~~its Group under Applicable Law~~ the Concentra Group; and (ii) Concentra shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and ~~this Agreement. The rights and obligations created by this Section 4.6 shall apply to all~~ immunities in connection with any privileged Information ~~(“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard~~ that relates solely to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Concentra Business and ~~its Group (other than Information satisfying the criteria of the preceding sentence relating~~ not to the ~~MGF Business (“VPG Information”))~~Select Business, whether or not ~~such~~ the privileged Information ~~(other than VPG Information)~~ is in the possession or under the control of ~~VPG~~ any member of the Concentra Group or any member of ~~its~~ the Select Group; . Concentra shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and ~~(x) all communications subject~~ immunities in connection with any privileged Information that relates solely to ~~a Privilege between counsel for Vishay (including~~ Concentra Business and not Select Business in connection with any ~~Person who~~Actions that are now pending or may be asserted in the future, at whether or not the ~~time~~ privileged Information is in the possession or under the control of any member of the ~~communication, was an employee of Vishay or its~~ Concentra Group ~~in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG~~ or any member of ~~its Group) and any Person who, at~~ the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Concentra Group. (b) Subject to the remaining provisions of this SECTION 7.07, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to SECTION 7.07(b) in connection with any Actions or threatened or contemplated Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement. Upon the reasonable request of Select or Concentra, 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, Select and Concentra will enter into a mutually acceptable common interest agreement so as to maintain to the extent practicable any applicable attorney-client privilege or work product immunity of any member of either Group. (c) 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 or any member of their respective Groups, 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 the members of its Group and (iii) not unreasonably withhold, delay or condition consent to any request for waiver by the other Party. (d) Upon receipt by ~~Vishay or VPG~~either Party, or by any member of ~~the members of the~~ its respective ~~Groups, as the case may be~~Group, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may have under this ~~Section 4.6~~ SECTION 7.07 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged~~ such privileged Information~~. Vishay~~ ; provided that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this ~~Section 4.6 unless (i)~~ SECTION 7.07 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (ce) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 7.08 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 3 contracts

Samples: Separation Agreement (Select Medical Holdings Corp), Separation Agreement (Concentra Group Holdings Parent, Inc.), Separation Agreement (Concentra Group Holdings Parent, Inc.)

Privileged Matters. To allocate the interests of each party in the Information as to which any party is entitled to assert a privilege in connection with professional services that have been provided prior to the Effective Time for the collective benefit of each of the SHC Entities and the LE Entities, whether or not such a privilege exists or the existence of which is in dispute (collectively, “Common Privileges”), the parties hereto agree as follows: (a) ~~Vishay~~ SHC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates to the SHC Business and, subject to Section 5.8(c), not to the LE Business, whether or not the privileged Information is in the possession of or under the control of the SHC Entities or the LE Entities. SHC 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 SHC reasonably anticipates may become, a SHC Liability and ~~VPG~~ that is not also, or that SHC reasonably anticipates will not become, a LE Liability, whether or not the privileged Information is in the possession of or under the control of the SHC Entities or the LE Entities. (b) Subject to Section 5.8(c), LE shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates to the LE Business and not to the SHC Business, whether or not the privileged Information is in the possession of or under the control of the SHC Entities or the LE Entities. LE 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 LE reasonably anticipates may become, a LE Liability and that is not also, or that LE reasonably anticipates will not become, a SHC Liability, whether or not the privileged Information is in the possession of or under the control of the SHC Entities or the LE Entities. (c) SHC 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 the expectation and intention as between SHC and LE with respect to any communications between advisors to SHC and LE occurring up to and including the Effective Time in connection with the Separation, the Distribution and such transactions are that the privilege and the expectation of client confidence belong exclusively to SHC. (d) Subject to the restrictions in this Section 5.8, SHC and LE agree that ~~their respective rights and obligations~~ they shall have equal right to ~~maintain~~assert all Common Privileges not allocated pursuant to the terms of Section 5.8(a), ~~preserve,~~ (b) or (c) (“Shared Privileges”) with respect to Information as to which the SHC Entities or the LE Entities may assert or a privilege. (e) Each party hereto shall ensure that no member of its Group may waive any Shared Privilege, without the written consent of the other party which shall not be unreasonably withheld or ~~all privileges belonging~~ delayed. (f) In the event of an Action between one or more of the LE Entities, on the one hand, and one or more of the SHC Entities, on the other hand, each such party shall have the right to ~~either party or~~ use any Information that may be subject to a Shared Privilege, without obtaining the ~~respective members~~ consent of ~~their respective Group~~ the other party, it being understood and agreed that the use of Information with respect to the ~~Vishay Business~~ Action or other dispute between the ~~MGF Business~~LE Entities, ~~including but~~ on the one hand, and the SHC Entities, on the other hand, shall not ~~limited~~ operate as or be used by either party as a basis for asserting a waiver of such Shared Privilege with respect to Third Parties. (g) If a dispute arises between any LE Entity, on the one hand, and any SHC Entity, on the other hand, regarding whether a Shared Privilege should be waived to protect or advance the interest of either party, each party hereto agrees that it shall negotiate in Good Faith and endeavor to minimize any prejudice to the ~~attorney-client~~rights of the other party, ~~work product privileges or~~ and shall not unreasonably withhold consent to any ~~other applicable privileges (individually, a “Privilege”), shall be governed~~ request for waiver by the ~~provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert~~ other party. (h) Upon receipt by either party hereto or ~~waive any or all Privileges, and VPG shall take no action (nor permit~~ by any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any of the members of the respective Groups, as the case may be, of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged~~ Information of subject to a 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 ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either party obtains knowledge that any of its Group’s current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably ~~calls~~ call for the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 any member of its Group may have under this Section ~~4.6~~ 5.8 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. ~~Vishay or VPG~~Each party shall bear its own expenses in connection with any such request. (i) 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 SHC and LE, as set forth in this Article V to maintain the ~~case may be~~confidentiality of the Confidential Information and to assert and maintain all applicable privileges. The access to Information being granted and the agreement to provide witnesses herein, ~~will not~~the furnishing of notices and documents and other cooperative efforts contemplated hereby, and ~~will cause~~ the transfer of privileged Information between and among the parties hereto and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution hereto shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Lands End Inc), Separation and Distribution Agreement (Lands End Inc), Separation and Distribution Agreement (Lands End Inc)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~RemainCo Group and the SpinCo Group, and that each of the members of the RemainCo Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the RemainCo Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) the Company shall 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 Mexico Business and not to the Nevada Business, whether or not the Privileged Information is in the possession or under the control of any member of the RemainCo Group or any member of the SpinCo Group. The Company shall also 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 any Retained Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the RemainCo Group or any member of the SpinCo Group; and (ii) SpinCo shall 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 Nevada Business and not to the Mexico Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the RemainCo Group. SpinCo shall also 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 any Assumed Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the RemainCo 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 IX to resolve any disputes as to whether any information relates solely to the Mexico Business, solely to the Nevada Business, or to both the Mexico Business and the Nevada Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party 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, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or dispute between the Company and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of the Company and SpinCo set forth in this Section 5.8 and in Section 5.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 3 contracts

Samples: Separation and Distribution Agreement (Paramount Gold & Silver Corp.), Merger Agreement (Coeur Mining, Inc.), Separation and Distribution Agreement (Paramount Gold Nevada Corp.)

Privileged Matters. (a) ~~Vishay and VPG~~ The Parties agree that their respective rights and obligations to maintain, preserve, assert or waive any or all privileges belonging to ~~either party~~ each such Party or ~~the respective members of their respective Group with respect to the Vishay Business~~ its subsidiaries or ~~the MGF Business,~~ VIEs including but not limited to the attorney-~~client,~~ client and work product privileges ~~or any other applicable privileges~~ (~~individually~~collectively, a “~~Privilege~~Privileges”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information (as defined below) of ~~Vishay~~E-House, ~~Vishay~~ E-House shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and ~~VPG~~ Leju shall take no action (nor permit any ~~member~~ of its ~~Group~~ subsidiaries or VIEs to take action) without the prior written consent of ~~Vishay~~ E-House that could result in any waiver of any Privilege that could be asserted by ~~Vishay~~ E-House or any ~~member~~ of its ~~Group~~ subsidiaries or VIEs under ~~Applicable Law~~ applicable law and this Agreement. With respect to Privileged Information of ~~VPG~~Leju, ~~VPG~~ Leju shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and ~~Vishay~~ E-House shall take no action (nor permit any ~~member~~ of its ~~Group~~ subsidiaries or VIEs to take action) without the prior written consent of ~~VPG~~ Leju that could result in any waiver of any Privilege that could be asserted by ~~VPG~~ Leju or any ~~member~~ of its ~~Group~~ subsidiaries or VIEs under ~~Applicable Law~~ applicable law and this Agreement. . (b) The rights and obligations created by this Section 4.6 shall apply to all Information ~~(“Privileged Information”)~~ as to which ~~Vishay or VPG~~ the Parties or their respective ~~Groups~~ subsidiaries or VIEs would be entitled to assert or ~~have~~ has asserted a Privilege ~~without regard to the effect, if any, of the Separation and the Distribution~~(“Privileged Information”). Privileged Information of ~~Vishay and its Group~~ E-House includes but is not limited to (wi) any and all Information ~~satisfying the criteria of the preceding sentence~~ regarding the ~~Vishay Business~~ business of E-House and its ~~Group~~ subsidiaries and VIEs (other than Information ~~satisfying~~ regarding the ~~criteria of the preceding sentence relating to the MGF Business (“VPG Information”)~~Leju Business), whether or not ~~such Information (other than VPG Information)~~ it is in the possession of ~~VPG~~ Leju or any ~~member~~ of its ~~Group~~subsidiaries and VIEs; ~~and~~ (xii) all communications subject to a Privilege between counsel for ~~Vishay~~ E-House (including in-house counsel) and any ~~Person~~ individual who, at the time of the communication, was an employee of ~~Vishay or its Group in the capacity of in~~E-~~house counsel~~House, regardless of whether such employee is or becomes an employee of ~~VPG~~ Leju or any ~~member~~ of its ~~Group~~subsidiaries and VIEs and (iii) ~~and any Person who~~all Information generated, at received or arising after the ~~time~~ Live Filing Date that refers or relates to Privileged Information of E-House generated, received or arising prior to the ~~communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group~~Live Filing Date. Privileged Information of ~~VPG and its Group~~ Leju includes but is not limited to (x) any and all ~~VPG Information~~Information regarding the Leju Business, whether or not it is in the possession of ~~Vishay~~ E-House or any ~~member~~ of its ~~Group~~subsidiaries and VIEs; ~~and~~ (y) all communications subject to a Privilege occurring after the ~~Distribution~~ Live Filing Date between counsel for ~~the MGF Business~~ Leju (including in-house counsel and former in-house counsel who are or were employees of ~~Vishay~~E-House) and any ~~Person~~ person who, at the time of the communication, was an employee of ~~VPG~~Leju, ~~any member of its Group or the MGF Business~~ regardless of whether such employee was, is or becomes an employee of ~~Vishay~~ E-House or any ~~member~~ of its ~~Group~~subsidiaries or VIEs and (z) all Information generated, received or arising after the Live Filing Date that refers or relates to Privileged Information of Leju generated, received or arising prior to the Live Filing Date. (bc) Upon receipt by ~~Vishay~~ a Party or ~~VPG,~~ its subsidiaries or ~~any of the members of the respective Groups, as the case may be,~~ VIEs of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other Party or its subsidiaries or VIEs, or if ~~Vishay or VPG,~~ a Party or any of ~~members of their respective Groups, as the case may be,~~ its subsidiaries or VIEs obtains knowledge that any of its current or former ~~employee of Vishay or VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the ~~other~~other Party or its subsidiaries or VIEs, ~~Vishay or VPG, as the case may be,~~ such Party shall promptly notify ~~the~~ that other Party of the existence of the request and shall provide ~~the~~ that other Party a reasonable opportunity to review the Information and to assert any rights it such other Party may have under this Section 4.6 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay~~ E-House or ~~VPG~~its subsidiaries or VIEs, or Leju or its subsidiaries and VIEs, as the case may be, will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any third party any of the ~~other~~other Party’s Privileged Information under this Section 4.6 unless (ia) ~~the non-disclosing party~~ such other Party has provided its express written consent to such production or disclosure or (iib) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review ~~(or for which the period for appeal or review has lapsed)~~ finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule~~, in which case, such Information shall be subject to Section 4.5~~. (cd) ~~Vishay~~E-House’s transfer of books and records pertaining to the ~~MGF~~ Leju Business and other Information pertaining to ~~VPG~~Leju, ~~Vishay~~if any, E-House’s agreement to permit ~~VPG~~ Leju to obtain Information existing prior to the ~~Distribution~~Live Filing Date, ~~VPG~~Leju’s transfer of books and records and other Information pertaining to ~~the Vishay Business~~E-House, if any, and ~~other Information to Vishay and VPG~~Leju’s agreement to permit ~~Vishay~~ E-House to obtain Information existing prior to the ~~Distribution~~ Live Filing Date are made in reliance on ~~Vishay~~E-House’s and ~~VPG~~Leju’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by ~~Vishay~~ E-House, or ~~VPG~~Leju, as the case may be. The access to Information, witnesses and individuals being granted pursuant to ~~Sections~~ Section 4.3 and Section 4.4 and the disclosure to ~~VPG and Vishay~~ one Party of Privileged Information relating to the ~~MGF Business or the Vishay Business~~ other Party’s businesses pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be asserted by ~~Vishay~~ E-House or ~~VPG~~ Leju to constitute, or otherwise be deemed, a waiver of any Privilege that has been or may be asserted under this Section 4.6 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted ~~to Vishay and VPG in~~to, or the obligations imposed ~~upon Vishay~~ upon, E-House and ~~VPG by,~~ Leju by this Section 4.6.

Appears in 3 contracts

Samples: Master Transaction Agreement (E-House (China) Holdings LTD), Master Transaction Agreement (Leju Holdings LTD), Master Transaction Agreement (Leju Holdings LTD)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group; (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one (1) or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 3 contracts

Samples: Separation and Distribution Agreement (Becton Dickinson & Co), Separation and Distribution Agreement (Embecta Corp.), Separation and Distribution Agreement (Embecta Corp.)

Privileged Matters. ~~(a) Vishay and VPG agree that their respective rights and obligations~~ To allocate the interests of each Party in the information as to ~~maintain, preserve, assert or waive~~ which any or all privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether Party is entitled to assert any privilege or ~~waive~~ protection from disclosure under any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under potentially Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) ~~as to which Vishay or VPG or their respective Groups would be entitled to assert or~~ in connection with professional services that have ~~asserted a Privilege without regard~~ been provided prior to the ~~effect~~Closing Date for the collective benefit of each of GSAM and its Subsidiaries and GSRP and its Subsidiaries, ~~if any~~whether or not such a privilege or protection exists or the existence of such privilege or protection is in dispute (provided, however, that such assertions of privilege or protection from disclosure must be made reasonably and in good faith), the ~~Separation and~~ Parties hereto agree as follows: (a) GSAM shall be entitled, in perpetuity, to control the ~~Distribution.~~ assertion or waiver of all privileges or protections from disclosure in connection with Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the ~~MGF Business (“VPG Information”)~~extent it arises from the conduct of GSAM in its capacity as Manager of GSRP and, subject to Section 6.15(c), whether or not ~~such~~ the Privileged Information ~~(other than VPG Information)~~ is in the possession of ~~VPG~~ or under the control of GSAM or any ~~member~~ of its ~~Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay~~ Subsidiaries or ~~its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG~~ GSRP or any ~~member~~ of its ~~Group~~Subsidiaries. (b) ~~and any Person who~~Subject to Section 6.15(c), at GSRP shall be entitled, in perpetuity, to control the ~~time~~ assertion or waiver of ~~the communication, was an employee of Vishay, regardless of whether such employee is~~ all privileges or ~~becomes an employee of VPG or any member of its Group.~~ protections from disclosure in connection with Privileged Information which relates to the Business (to the extent it does not arise from the conduct of ~~VPG and~~ GSAM in its ~~Group includes but is not limited to (x) any and all VPG Information~~capacity as Manager of GSRP), whether or not it the Privileged Information is in the possession of ~~Vishay~~ or under the control of GSAM or any ~~member~~ of its ~~Group;~~ Subsidiaries or GSRP or any of its Subsidiaries. (c) Subject to the restrictions in this Section 6.15, GSAM and GSRP agree that they shall have equal right to assert all privileges or protections from disclosure (y“Shared Privileges”) ~~all communications~~ not allocated pursuant to the terms of Section 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. 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 pending or future Litigation, and such information, insofar as it is shared between the Parties, shall continue to be held in strict confidence to maintain the applicability of any privilege or protection from disclosure. (d) None of the Parties shall, and they shall cause their respective Subsidiaries not to, waive any Shared Privilege, without the written consent of the other Party, which shall not be unreasonably withheld or delayed. (e) In the event of a Litigation between GSAM or one of its Subsidiaries, on the one hand, and GSRP or one of its Subsidiaries, on the other hand, each Party shall have the right to use any information that may be subject to a ~~Privilege occurring after~~ Shared Privilege, without obtaining the ~~Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time~~ consent of the ~~communication~~other Party, ~~was an employee~~ it being understood and agreed that the use of ~~VPG, any member~~ information with respect to such Litigation or other dispute between GSAM or one of its ~~Group~~ Subsidiaries, on the one hand, and GSRP or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member~~ one of its ~~Group~~Subsidiaries, on the other hand, shall not operate as or be used by either Party as a basis for asserting a waiver of such Shared Privilege with respect to third parties. (bf) If a dispute arises between GSAM or one of its Subsidiaries, on the one hand, and GSRP or one of its Subsidiaries, on the other hand, regarding whether a Shared Privilege should be waived to protect or advance the interest of either Party, each Party agrees that it shall negotiate in good 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 ~~Vishay~~ either Party hereto or ~~VPG, or~~ by any of ~~the members of the~~ its respective ~~Groups, as the case may be,~~ Subsidiaries of any subpoena, discovery or other request ~~from any third party that actually or arguably~~ which calls for the production or disclosure of ~~Privileged Information of~~ information subject to a Shared Privilege or as to which the other Party or one of its respective Subsidiaries has the sole right hereunder to assert a privilege or other protection from disclosure, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its or its Subsidiaries’ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably ~~calls~~ call for the production or disclosure of such Privileged ~~Information of~~ Information, before disclosing the ~~other~~requested Privileged Information, ~~Vishay or VPG~~such Party shall, ~~as the case may be~~in all cases, ~~shall~~ promptly notify the other 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~~ information and to assert any rights it or any of its Subsidiaries may have under this Section ~~4.6~~ 6.15 or otherwise to prevent the production or disclosure of such Privileged Information. ~~Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to~~ Each Party shall bear its own expenses in connection with any ~~third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to~~ such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5request. (ch) ~~Vishay’s~~ The transfer of ~~books~~ all information and ~~records pertaining~~ each Party’s retention of information which may include Privileged Information of the other pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6,~~ the agreements of the Parties hereto to maintain the confidentiality of ~~such Information~~ the information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to~~ applicable privileges or ~~be asserted by Vishay or VPG, as the case may be~~protections from disclosure. The access to ~~Information, witnesses and individuals~~ information being granted ~~pursuant to Sections 4.3 and 4.4~~ and the ~~disclosure~~ agreement to ~~VPG~~ provide witnesses herein, the furnishing of notices and ~~Vishay~~ documents and other cooperative efforts contemplated hereby, and the transfer of Privileged Information ~~relating to~~ between and among the ~~MGF Business or the Vishay Business~~ Parties hereto and their respective Subsidiaries pursuant ~~to this Agreement in connection with the Separation and Distribution~~ hereto shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege or protections from disclosure that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Internalization Agreement (MN8 Energy, Inc.), Internalization Agreement (MN8 Energy, Inc.), Internalization Agreement (MN8 Energy, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ shall be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”),~~ Effective Time have been and shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~New Worthington Group and the Worthington Steel Group, and that each of the members of the New Worthington Group and the Worthington Steel Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided after the Effective Time, which services will be rendered solely for the benefit of the New Worthington Group or the Worthington Steel Group, as the case may be. (b) The Parties agree as follows: (i) New Worthington shall 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 New Worthington Business, whether or not the Privileged Information is in the possession or under the control of a member of the New Worthington Group or the Worthington Steel Group; New Worthington shall also 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 any New Worthington Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of a member of the New Worthington Group or the Worthington Steel Group; (ii) Worthington Steel shall 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 Worthington Steel Business, whether or not the Privileged Information is in the possession or under the control of a member of the New Worthington Group or the Worthington Steel Group; Worthington Steel shall also 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 any Worthington Steel Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of a member of the New Worthington Group or the Worthington Steel 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 New Worthington Business, solely to the Worthington Steel Business, or to both the New Worthington Business and the Worthington Steel Business. (c) Subject to Sections 6.8(d) and 6.8(e), the Parties agree that they shall have a shared privilege or immunity with respect to all privileges not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the written consent of the other Party. (d) If any dispute arises between the Parties, or any member of their respective Groups, 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests. (e) Upon receipt by any member of the Worthington Steel Group of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information ~~of the other~~ subject to a shared privilege or ~~if Vishay~~ immunity or ~~VPG,~~ as to which New Worthington or any of ~~members of their respective Groups~~its Subsidiaries has the sole right hereunder to assert a privilege or immunity, ~~as the case may be,~~ or if Worthington Steel obtains knowledge that any of its, or any member of the Worthington Steel Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ Worthington Steel shall promptly ~~notify the other~~ provide written notice to New Worthington of the existence of the request (which notice shall be delivered to New Worthington no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide ~~the other~~ New Worthington a reasonable opportunity to review the Information and to assert any rights it or they may ~~have~~ have, including under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (f) Upon receipt by any member of the New Worthington 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 Worthington Steel or any member of the Worthington Steel Group has the sole right hereunder to assert a privilege or immunity, or if New Worthington obtains knowledge that any of its, or any member of the New Worthington 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, New Worthington shall promptly provide written notice to Worthington Steel of the existence of the request (which notice shall be delivered to Worthington Steel no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide Worthington Steel 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 and the transfer of the Assets and retention of the Worthington Steel Assets by Worthington Steel are made and done in reliance on the agreement of the Parties set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return or transfer, as the case may be, such Privileged Information to ~~reduce~~the Party who has the right to assert the privilege or immunity. (h) In furtherance of, ~~minimize or condition~~ and without limitation to, the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ Parties’ agreement under this Section ~~4.6~~6.8, New Worthington and Worthington Steel 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

Samples: Separation and Distribution Agreement (Worthington Enterprises, Inc.), Separation and Distribution Agreement (Worthington Steel, Inc.), Separation and Distribution Agreement (Worthington Steel, Inc.)

Privileged Matters. (a) ~~Vishay~~ Solely for purposes of asserting privileges which may be asserted under applicable Law, and ~~VPG~~ without limiting the provisions of Section 7.10: (x) in order to protect the rights of the Parties to assert privilege, the Parties acknowledge and agree that ~~their respective rights~~ legal and ~~obligations~~ other professional services that have been and will be provided prior to ~~maintain~~the Distribution (whether by outside counsel, ~~preserve~~in-house counsel, ~~assert~~ other legal professionals, or ~~waive any~~ other professionals acting at the direction of counsel) have been and will be rendered for the collective benefit of Parent and SpinCo, and (y) each of Parent and SpinCo shall be deemed to have been the client in connection with such services with respect to periods prior to the Distribution. The Parties acknowledge and agree that legal and other professional services will be provided following the Distribution, which services will be rendered solely for the benefit of Parent or SpinCo, as the case may be. (b) Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges ~~belonging~~ and immunities in connection with any privileged Information that relates solely to ~~either party~~ the Parent Business or the ~~respective~~ Distribution and not to the SpinCo Business, whether or not the privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Assets or Parent Liabilities, and not any SpinCo Assets or SpinCo Liabilities, in connection with any Actions or Internal Investigations that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. For the avoidance of doubt, Information shall not be deemed to relate to the Parent Business solely by virtue of the fact that personnel associated with the corporate function of Parent were involved in the production or evaluation of such Information or otherwise involved in the Actions or Internal Investigations relating to such Information. (c) SpinCo shall 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 SpinCo Business and not to the Parent Business or the Distribution, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Assets or SpinCo Liabilities and not any Parent Assets or Parent Liabilities in connection with any Actions or Internal Investigations that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. For the avoidance of doubt, Information shall not be deemed to relate to the SpinCo Business solely by virtue of the fact that SpinCo personnel were involved in the production or evaluation of such Information or otherwise involved in the Actions or Internal Investigations relating to such Information. (d) Subject to the remaining provisions of this Section 7.08, the Parties agree that Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with privileged Information not otherwise allocated pursuant to this Section 7.08 in connection with any Actions or Internal Investigations, or threatened or contemplated Actions or Internal Investigations, or other matters that involve both Parties (or one or more members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)Groups), whether or not such privileged Information ~~(other than VPG Information)~~ is in the possession or under the control of ~~VPG~~ a member of the SpinCo Group or a member of the Parent Group. (e) To the extent that an issue regarding a privilege controlled by one Party under this Section 7.08 arises in connection with an Action or Internal Investigation the defense, prosecution or conduct (as applicable) of which the other Party is entitled to direct pursuant to Section 6.11, the Party entitled to control such privilege shall cooperate in good faith with the Party directing such Action or Internal Investigation in order to facilitate the efficient administration of such Action or Internal Investigation. 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 or any member of ~~its Group;~~ their respective Groups, each Party agrees that it shall: (i) negotiate with the other Party in good faith and (xii) ~~all communications subject~~ endeavor to ~~a Privilege between counsel for Vishay (including~~ minimize any ~~Person who, at~~ prejudice to the ~~time~~ rights of the ~~communication, was an employee of Vishay or its Group in~~ other Party and the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member members of its Group. (bf) Upon receipt by ~~Vishay or VPG~~either Party, or by any member of ~~the members of the~~ its respective ~~Groups, as the case may be~~Group, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will receive or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will receive or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 7.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged~~ such privileged Information~~. Vishay~~ ; provided that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this Section ~~4.6 unless (i)~~ 7.08 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (cg) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (General Electric Co), Separation and Distribution Agreement (GE Vernova Inc.), Separation and Distribution Agreement (GE Vernova LLC)

Privileged Matters. ~~(a) Vishay and VPG agree that their respective rights and obligations~~ To allocate the interests of each party in the Information as to ~~maintain, preserve, assert or waive any or all privileges belonging to~~ which either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups ~~would be~~ is entitled to assert or a privilege in connection with professional services that have ~~asserted a Privilege without regard~~ been provided prior to the ~~effect, if any,~~ Closing Date for the collective benefit of each of the ~~Separation~~ members of the SHC Group and the ~~Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria~~ members of the ~~preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”))~~Seritage Group, whether or not such a privilege exists or the existence of which is in dispute (collectively, “Common Privileges”), the parties agree as follows: (a) SHC shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information ~~(other than VPG Information)~~ which does not relate primarily to the Transferred Properties, whether or not the privileged Information is in the possession of ~~VPG~~ or under the control of members of the SHC Group or members of the Seritage Group. SHC 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 SHC reasonably anticipates may become, a Liability of SHC or a member of the SHC Group and that is not also, or that SHC reasonably anticipates will not become, a Liability of Seritage or any member of ~~its~~ the Seritage Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it the privileged Information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time members of the ~~communication, was an employee of VPG, any member of its~~ SHC Group or members of the ~~MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its~~ Seritage Group. (b) Subject to Section 7.8(c), Seritage shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates primarily to the Transferred Properties, 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. 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) 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 the expectation and intention as between SHC and Seritage with respect to 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 7.8, SHC and Seritage agree that they shall have equal right to assert all Common Privileges not allocated pursuant to the terms of Section 7.8(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. Each party shall ensure that no member of its Group may waive any Shared Privilege, without the written consent of the other party which shall not be unreasonably withheld or delayed. (e) In the event of an Action between one or more members of the Seritage Group, on the one hand, and one or more members of the SHC Group, on the other hand, each such Person shall have the right to use any Information that may be subject to a Shared Privilege, without obtaining the consent of the other party, it being understood and agreed that the use of Information with respect to the Action or other dispute between members of the 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 such Shared Privilege with respect to Third Parties. (f) If a dispute arises between any member of the Seritage Group, on the one hand, and any member of the SHC Group, on the other hand, regarding whether a Shared Privilege should be waived to protect or advance the interest of either party, each party agrees that it shall negotiate in Good 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. (g) Upon receipt by ~~Vishay~~ either party or ~~VPG, or~~ by any member of ~~the members of the respective Groups, as the case may be,~~ its Group of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or~~ arguably calls for the production or disclosure of ~~Privileged~~ Information of subject to a 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 ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either party obtains knowledge that any current or former ~~employee~~ directors, officers, agents or employees of ~~Vishay or VPG, as the case may be, receives~~ any member of its Group have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or~~ arguably ~~calls~~ call for the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 any member of its Group may have under this Section ~~4.6~~ 7.8 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. ~~Vishay or VPG~~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 SHC and Seritage, as set forth in this Article VII to maintain the ~~case may be~~confidentiality of Information provided by a Disclosing Party and to assert and maintain all applicable privileges. The access to Information being granted and the agreement to provide witnesses herein, ~~will not~~the furnishing of notices and documents and other cooperative efforts contemplated hereby, and ~~will cause~~ the transfer of privileged Information between and among the parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution hereto shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: 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) ~~Vishay~~ Each of NiSource and ~~VPG agree that their respective rights and obligations~~ Columbia agrees to maintain, ~~preserve,~~ preserve and assert ~~or waive any or~~ all ~~privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business~~privileges, including ~~but not limited~~ privileges arising under or relating to the attorney-~~client,~~ client relationship (which shall include the attorney-client and work product ~~privileges~~ privileges), not heretofore waived, that relate to the Columbia Business or the NiSource Business for any ~~other applicable privileges~~ period prior to the Distribution Date (~~individually,~~ each a “Privilege”), . Each party hereto acknowledges and agrees that any costs associated with asserting any Privilege shall be ~~governed~~ borne by the ~~provisions of this Section 4.6~~party requesting that such Privilege be asserted. ~~With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive~~ Each party hereto agrees that neither it nor any ~~or all Privileges, and VPG shall take no action (nor permit any member~~ of its ~~Group to take action) without the prior written consent of Vishay that could result in any waiver of~~ Affiliates shall waive any Privilege that could be asserted by ~~Vishay~~ the other party hereto or any ~~member~~ of its ~~Group~~ Affiliates under ~~Applicable~~ applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of ~~VPG that could result in any waiver of any Privilege that could~~ the other party (which consent shall not be ~~asserted by VPG~~ unreasonably withheld, conditioned or ~~any member of its Group under Applicable Law and this Agreement~~delayed). The rights and obligations created by this Section ~~4.6~~ 9.9 shall apply to all ~~Information~~ information relating to the NiSource Business or the Columbia Business as to which, but for the Distribution, any Party would have been entitled to assert or did assert the protection of a Privilege (“Privileged Information”~~) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect~~), ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to~~ including (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Distribution Date but which, ~~whether or not such Information (other than VPG Information)~~ after the Distribution, is in the possession of ~~VPG or~~ any ~~member of its Group;~~ Party and (xii) all ~~communications subject to a Privilege between counsel for Vishay (including any Person who~~information generated, ~~at the time of the communication, was an employee of Vishay~~ received or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring arising after the Distribution ~~between counsel for~~ Date that refers to or relates to Privileged Information generated, received or arising prior to the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupDistribution Date. (b) Upon receipt by ~~Vishay or VPG, or any of the members of the respective Groups, as the case may be,~~ either party of any subpoena, discovery or other request ~~from~~ that may call for the production or disclosure of Privileged Information or if any ~~third~~ party obtains knowledge that ~~actually~~ any current or ~~arguably calls~~ former director, officer or employee of NiSource, Columbia or any of their respective Affiliates has received any subpoena, discovery or other request that may call for the production or disclosure of Privileged Information of the other ~~or if Vishay or VPG,~~ party or any of ~~members of their respective Groups~~such other party’s Affiliates, ~~as the case may be, obtains knowledge that any current or former employee of Vishay or VPG, as the case may be, receives any subpoena, discovery or other request from any third~~ such party ~~that actually or arguably calls for the production or disclosure of Privileged Information of the other, Vishay or VPG, as the case may be,~~ shall notify promptly ~~notify~~ the other party hereto of the existence of the request and shall provide the other party hereto a reasonable opportunity to review the ~~Information~~ information and to assert any rights it or any of its Affiliates may have under this Section ~~4.6~~ 9.9 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Each party hereto agrees that it will ~~not, and will cause the members of their respective Groups to not,~~ not produce or ~~disclose to any third party~~ disclose, or permit any of its Affiliates to produce or disclose, any information that may be covered by a Privilege of the ~~other~~other party hereto or any of such other party’s ~~Privileged Information~~ Affiliates under this Section ~~4.6~~ 9.9 unless (i) the ~~non-disclosing~~ other party has provided its ~~express~~ written consent to such production or disclosure (which consent shall not be unreasonably withheld, conditioned or delayed) or (ii) a court of competent jurisdiction has entered an a final, nonappealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable ~~privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~Privilege. (c) ~~Vishay~~NiSource’s transfer of books and records ~~pertaining to the MGF Business~~ and other ~~Information~~ information to ~~VPG~~Columbia, ~~Vishay~~and NiSource’s agreement to permit ~~VPG~~ Columbia to ~~obtain~~ possess Privileged Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing or generated prior to the Distribution Date, are made in reliance on ~~Vishay~~Columbia’s ~~and VPG’s respective agreements~~agreement, as set forth in Section ~~4.5~~ 9.8 and ~~this~~ Section ~~4.6~~9.9, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to ~~Sections 4.3~~ Section 9.1, the agreement to provide witnesses and ~~4.4~~ individuals pursuant to Section 9.6 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating~~ to ~~the MGF Business or the Vishay Business~~ Columbia pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 9.9 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay and VPG~~ NiSource in, or the obligations imposed upon ~~Vishay and VPG~~ Columbia by, this Section ~~4.6~~9.9. Columbia’s transfer of books and records and other information to NiSource, and Columbia’s agreement to permit NiSource to possess Privileged Information existing or generated prior to the Distribution Date, are made in reliance on NiSource’s agreement, as set forth in Section 9.8 and Section 9.9, to maintain the confidentiality of Privileged Information and to assert and maintain all applicable Privileges. The access to information being granted pursuant to Section 9.1, the agreement to provide witnesses and individuals pursuant to Section 9.6 and the transfer of Privileged Information to NiSource pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Section 9.9 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Columbia in, or the obligations imposed upon NiSource by, this Section 9.9. For the avoidance of doubt, to the extent that books, records and other information remain in the possession of any of the NiSource Parties, such books, records and other information shall remain the property of NiSource, and NiSource shall retain the right to assert privilege over them. (d) If any dispute arises between any NiSource Party and any Columbia Party regarding whether a privilege should be waived to protect or advance the interests of either the NiSource Parties or the Columbia Parties, each party hereto agrees that it shall (i) negotiate with the other party hereto in good faith, (ii) endeavor to minimize any prejudice to the rights of the other party hereto and (iii) not unreasonably withhold, condition or delay consent to any request for waiver by the other party hereto. Nevertheless, each Party is permitted to withhold its consent to the waiver of a privilege for the purpose of protecting its own legitimate interests. (e) The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of NiSource and Columbia set forth in Section 9.8 and this Section 9.9 to maintain the confidentiality of privileged Information and to assert and maintain all applicable privileges. 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 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 3 contracts

Samples: Separation and Distribution Agreement (Nisource Inc/De), Separation and Distribution Agreement (Columbia Pipeline Group, Inc.), Separation and Distribution Agreement (Columbia Pipeline Group, Inc.)

Privileged Matters. 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 Distribution Date have been and will be rendered for the benefit of SEACOR, the members of the SEACOR Group and the members of the SEACOR Marine Group, and that each of the members of the SEACOR Group, and each of the members of the SEACOR Marine Group should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable Law. 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ SEACOR shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging~~ in connection with privileged information which relates solely to ~~either party or~~ the ~~respective members of their respective Group~~ SEACOR Business (other than with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) Liabilities as to which ~~Vishay or VPG or their respective Groups would be entitled~~ SEACOR Marine is required to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)provide indemnification under Article III), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of SEACOR, SEACOR Marine or any member of ~~its~~ either Party’s Group~~; and (x)~~ . SEACOR shall also be entitled, in perpetuity, to control the assertion or waiver of all ~~communications~~ privileges in connection with privileged information that relates solely to the subject matter of any claims constituting SEACOR Liabilities, or other Liabilities as to ~~a Privilege between counsel for Vishay (including any Person who~~which it is required to provide indemnification under Article III, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationfuture, whether or not it the privileged information is in the possession of ~~Vishay~~ or under the control of SEACOR, SEACOR Marine or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its either Party’s Group. (b) 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 SEACOR 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 SEACOR, SEACOR Marine or any member of either Party’s Group. SEACOR Marine 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 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 SEACOR Marine, whether or not the privileged information is in the possession of SEACOR Marine or under the control of SEACOR, SEACOR Marine or any 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 4.5, with respect to all privileges not allocated pursuant to the terms of Sections 4.5(a) and (b). (d) No Party may waive any privilege which could be asserted under any applicable Law, and in which the other Party has a shared privileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsection (e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 20 days after notice upon the other Party requesting such consent. (e) In the event of any litigation or dispute between or among the Parties, any Party and a Subsidiary of the other Party, or a Subsidiary of one Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party 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 Parties and/or their Subsidiaries, and shall not operate as a waiver of the shared privilege with respect to any Third-Party Claims. (f) If a dispute arises between or among the Parties or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of 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 ~~Vishay~~ any Party or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its or any of its Subsidiaries’ current or former ~~employee of Vishay or VPG, as the case may be, receives~~ Representatives have received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 4.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of SEACOR and ~~VPG’s respective agreements~~SEACOR Marine, as set forth in ~~Section 4.5~~ Sections 4.2, 4.4 and ~~this Section 4.6~~4.5, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and ~~4.4~~ 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 ~~disclosure to VPG~~ transfer of privileged information between and ~~Vishay of Privileged Information relating to~~ among the ~~MGF Business or the Vishay Business~~ Parties and their respective Subsidiaries, Affiliates and Representatives pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Distribution Agreement (Seacor Holdings Inc /New/), Distribution Agreement (SEACOR Marine Holdings Inc.), Distribution Agreement (SEACOR Marine Holdings Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services shall be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to (i) all privileges and immunities not allocated pursuant to Section 6.8(b) and (ii) all privileges and immunities relating to any Actions or other matters that involve both Parties (or one (1) or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, each Party agrees that it shall (i) negotiate with the other Party and provide a clear, written explanation of its position on the Dispute; (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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose, except in good faith to protect its own legitimate interests. (e) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall promptly notify the other Party of the existence of the request ~~and~~ (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, prior to the production or disclosure of any Privileged Information, shall provide the other Party a reasonable opportunity to review the Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (f) Any furnishing of, or access to or transfer of, any information pursuant to this Agreement is made in reliance on the agreement between Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that (i) their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege or immunity that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise, and (ii) in the event of any 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 VI, 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. ~~Nothing~~ The Parties agree that they have or may in ~~this Agreement shall operate~~ the future have common legal interests in the Parent 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 ~~reduce, minimize~~ further the Parties’ common legal interests. (g) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 to implement and/or supersede the provisions of Section 6.7 or this Section 6.8 where necessary or useful for this purpose.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Zimmer Biomet Holdings, Inc.), Separation and Distribution Agreement (ZimVie Inc.), Separation and Distribution Agreement (ZimVie Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain~~the Effective Time have been and will be rendered for the collective benefit of each of the Ralcorp Parties and the Post Parties, ~~preserve, assert or waive any or all privileges belonging~~ and that each of the Ralcorp Parties and the Post Parties should be deemed to ~~either party or~~ be the ~~respective members of their respective Group~~ client with respect to such pre-separation services for the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product~~ purposes of asserting all privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could which may be asserted ~~by Vishay or any member of its Group~~ under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupapplicable law. (b) ~~Upon receipt by Vishay~~ 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 Ralcorp or ~~VPG, or any of the members of the respective Groups~~Post, as the case may be. With respect to such post-separation services, the Parties agree as follows: (i) Ralcorp shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates solely to the Ralcorp Business, whether or not the privileged Information is in the possession of or under the control of Ralcorp or Post. Ralcorp 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 Ralcorp Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Ralcorp, whether or not the privileged Information is in the possession of or under the control of Ralcorp or Post; and (ii) Post shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates solely to the Post Business, whether or not the privileged Information is in the possession of or under the control of Ralcorp or Post. Post 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 Post Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Post, whether or not the privileged Information is in the possession of or under the control of Ralcorp or Post. (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 13.09, with respect to all privileges not allocated pursuant to the terms of Section 13.09(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both Ralcorp and Post 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 Section 13.09(e) or Section 13.09(f). Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 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 13.09(b). (e) In the event of any litigation or dispute between or among any of the Parties, or any of their respective Subsidiaries, joint ventures or partnerships, either such Party may waive a privilege in which the other Party or such other 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 Subsidiaries, joint ventures or partnerships, respectively, 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 their 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 Subsidiary, joint venture or partnership thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information 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 ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its or any of its Subsidiaries’, joint ventures’ or partnerships’ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 13.09 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (ch) ~~Vishay~~Ralcorp’s transfer of books and records ~~pertaining to the MGF Business~~ and other ~~Information~~ information to ~~VPG~~Post, ~~Vishay~~and Ralcorp’s agreement to permit ~~VPG~~ Post to ~~obtain~~ possess privileged Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing or generated prior to the Distribution Date, are made in reliance on ~~Vishay~~Post’s ~~and VPG’s respective agreements~~agreement, as set forth in Section ~~4.5~~ 13.08 and ~~this~~ Section ~~4.6~~13.09, to maintain the confidentiality of ~~such~~ privileged Information and to ~~take the steps provided herein for the preservation of~~ protect and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to ~~Sections 4.3~~ Section 13.01, the agreement to provide witnesses and ~~4.4~~ individuals pursuant to Section 13.06 and the ~~disclosure~~ transfer of privileged Information to ~~VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business~~ Post pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this Section ~~4.6~~ 13.09 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay and VPG~~ Ralcorp in, or the obligations imposed upon ~~Vishay and VPG~~ Post by, this Section ~~4.6~~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

Samples: 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) ~~Vishay~~ SAP and ~~VPG~~ Qualtrics agree that their respective rights and obligations to maintain, preserve, assert or waive any or all privileges belonging to either ~~party~~ Party or ~~the respective members of their respective Group with respect to the Vishay Business or the MGF Business~~its Subsidiaries, including but not limited to the attorney-~~client~~client privilege, the work product ~~privileges or~~ immunity, and any other ~~applicable privileges~~ privilege or immunity from production (~~individually~~collectively, a “~~Privilege~~Privileges”), shall be governed by the provisions of this Section ~~4.6~~3.6. With respect to Privileged Information (as defined below) of ~~Vishay~~SAP, ~~Vishay~~ SAP shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and ~~VPG~~ Qualtrics shall ~~take~~ use its reasonable best efforts to ensure that it takes no action (nor permit any ~~member~~ of its ~~Group~~ Subsidiaries to take action) without the prior written consent of ~~Vishay~~ SAP that ~~could~~ would be reasonably likely to result in any waiver of any Privilege that could be asserted by ~~Vishay~~ SAP or any ~~member~~ of its ~~Group~~ Subsidiaries under ~~Applicable Law~~ applicable law and this Agreement. With respect to Privileged Information of ~~VPG~~Qualtrics arising after the IPO Date, ~~VPG~~ Qualtrics shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and ~~Vishay~~ SAP shall ~~take~~ use its reasonable best efforts to ensure that it takes no action (nor permit any ~~member~~ of its ~~Group~~ Subsidiaries to take action) without the prior written consent of ~~VPG~~ Qualtrics that ~~could~~ would be reasonably likely to result in any waiver of any Privilege that could be asserted by ~~VPG~~ Qualtrics or any ~~member~~ of its ~~Group~~ Subsidiaries under ~~Applicable Law~~ applicable law and this Agreement. The rights and obligations created by this Section ~~4.6~~ 3.6 shall apply to all Information ~~(“Privileged Information”)~~ as to which ~~Vishay~~ SAP or ~~VPG~~ Qualtrics or their respective ~~Groups~~ Subsidiaries would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“~~VPG~~ Privileged Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by ~~Vishay~~ SAP or ~~VPG, or any of the members of the respective Groups~~Qualtrics, as the case may be, of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the ~~other~~ other, or if ~~Vishay~~ SAP or ~~VPG, or any of members of their respective Groups~~Qualtrics, as the case may be, obtains knowledge that any current or former employee of ~~Vishay~~ SAP or ~~VPG~~Qualtrics, as the case may be, ~~receives~~ has received any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other, ~~Vishay~~ SAP or ~~VPG~~Qualtrics, as the case may be, shall promptly notify the other of the existence of the request and ~~shall~~ shall, to the extent possible, provide the other a reasonable opportunity to review the Information and to assert any rights it may have under this Section ~~4.6~~ 3.6 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay~~ SAP or ~~VPG~~Qualtrics, as the case may be, will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any third party any of the other’s Privileged Information under this Section ~~4.6~~ 3.6 unless (i) the ~~non-disclosing party~~ other has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review ~~(or for which the period for appeal or review has lapsed)~~ finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule~~, in which case, such Information shall be subject to Section 4.5~~. (c) ~~Vishay’s~~ Each and all of the Parties’ transfer of books and records ~~pertaining to the MGF Business~~ and other Information to ~~VPG, Vishay~~each other and each Party’s agreement to permit ~~VPG~~ the other Party to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution IPO Date are made in reliance on ~~Vishay~~SAP’s and ~~VPG’s~~ Qualtrics’ respective agreements, as set forth in Section ~~4.5~~ 3.5 and this Section ~~4.6~~3.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by ~~Vishay~~ SAP or ~~VPG~~Qualtrics, as the case may be. The access to Information, witnesses and individuals being granted pursuant to ~~Sections 4.3~~ Section 3.3 and ~~4.4~~ Section 3.4 and the disclosure to ~~VPG~~ Qualtrics and ~~Vishay~~ SAP of Privileged Information relating to the ~~MGF~~ Qualtrics Business or the ~~Vishay~~ SAP Business pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be asserted by ~~Vishay~~ SAP or ~~VPG~~ Qualtrics to constitute, or otherwise be deemed, a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 3.6 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay~~ SAP and ~~VPG~~ Qualtrics in, or the obligations imposed upon ~~Vishay~~ SAP and ~~VPG~~ Qualtrics by, this Section ~~4.6~~3.6.

Appears in 3 contracts

Samples: Master Transaction Agreement (Qualtrics International Inc.), Master Transaction Agreement (Qualtrics International Inc.), Master Transaction Agreement (Qualtrics International Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ the ~~respective~~ Effective Time have been and will be rendered for the collective benefit of each of the members of ~~their respective~~ the L-3 Group and the Spinco Group, and that each of the members of the L-3 Group and the Spinco Group should be deemed to be the client with respect to such pre-separation services for the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product~~ purposes of asserting all privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could which may be asserted ~~by Vishay or any member of its Group~~ under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupapplicable Law. (b) ~~Upon receipt by Vishay~~ 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 L-3 or ~~VPG, or any of the members of the respective Groups~~Spinco, as the case may be. With respect to such post-separation services, the Parties agree as follows: (i) L-3 shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged Information which relates solely to the L-3 Business, whether or not the privileged Information is in the possession of or under the control of L-3 or Spinco. L-3 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 L-3 Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by L-3, whether or not the privileged Information is in the possession of or under the control of L-3 or Spinco; and (ii) 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 Spinco Business, whether or not the privileged Information is in the possession of or under the control of L-3 or Spinco. 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 Spinco Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Spinco, whether or not the privileged Information is in the possession of or under the control of L-3 or 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 11.04, with respect to all privileges not allocated pursuant to the terms of Section 11.04(b). All privileges relating to any claims, proceedings, litigation, disputes or other matters which involve both L-3 and Spinco 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 Section 11.04(e) or Section 11.04(f) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 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 11.04(b). (e) In the event of any litigation or dispute between or among the Parties, or any members of their respective Groups, either such Party may waive a privilege in which the other Party or member of such Group has a shared privilege, without obtaining the consent of the other Party; provided, that such waiver of a shared privilege shall be effective only as to the use of 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 their 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 subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged~~ Information of subject to a shared privilege or as to which the other Party has the sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its or any of its subsidiaries’ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 11.04 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of L-3 and ~~VPG’s respective agreements,~~ Spinco as set forth in Section ~~4.5~~ 11.03 and ~~this~~ Section ~~4.6,~~ 11.04 to maintain the confidentiality of ~~such~~ privileged Information and to ~~take the steps~~ assert and maintain all applicable privileges. Nothing provided for herein ~~for the preservation of all Privileges that may belong to~~ or in any Ancillary Agreement shall be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Distribution Agreement (Engility Holdings, Inc.), Distribution Agreement (Engility Holdings, Inc.), Distribution Agreement (L 3 Communications Holdings Inc)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that does not relate solely to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that does not relate solely to any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group; and (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 in writing. The Parties shall use the procedures set forth in Article VII to resolve any disputes as to whether any Information relates solely to the Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the written consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that such waiver of a shared privilege shall be effective only as to the use of Information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (cg) ~~Vishay’s~~ Any furnishing of, or access or transfer ~~of books and records pertaining~~ of, any Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Parent and ~~VPG’s respective agreements, as~~ SpinCo set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 6.8 and in Section 6.9 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The Parties agree that their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to~~ between the ~~MGF Business or the Vishay Business~~ Parties and members of their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 3 contracts

Samples: Separation and Distribution Agreement (Ingevity Corp), Separation and Distribution Agreement (Ingevity Corp), Separation and Distribution Agreement (Ingevity Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges~~ Distribution (~~individually, a “Privilege”), shall be governed~~ whether by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house outside counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel or other legal professionals) have been and ~~former in-house counsel who are employees~~ will be rendered for the collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Xerox Group and the Conduent Group, and that each of the members of the Xerox Group and the Conduent Group shall be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Distribution, which services will be rendered solely for the benefit of the Xerox Group or the Conduent Group, as the case may be. (b) The Parties agree as follows: (i) Xerox shall 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 Xerox Business and not to the BPO Business, whether or not the privileged Information is in the possession or under the control of any member of the Xerox Group or any member of the Conduent Group. Xerox shall also 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 any Xerox Assets or Xerox Liabilities and not any Conduent Assets or Conduent Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Xerox Group or any member of the Conduent Group; and (ii) Conduent shall 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 BPO Business and not to the Xerox Business, whether or not the privileged Information is in the possession or under the control of any member of the Conduent Group or any member of the Xerox Group. Conduent shall also 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 any Conduent Assets or Conduent Liabilities and not any Xerox Assets or Xerox Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Conduent Group or any member of the Xerox Group. (c) Subject to the remaining provisions of this Section 7.08, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 7.08(b) in connection with any Actions or threatened or contemplated Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement. Upon the reasonable request of Xerox or Conduent, 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, Xerox and Conduent will enter into a mutually acceptable common interest agreement so as to maintain to the extent practicable any applicable attorney-client privilege or work product immunity of any member of either Group. (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 Groups, 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 the members of its Group and (iii) not unreasonably withhold, delay or condition consent to any request for waiver by the other Party. (e) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 7.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged~~ such privileged Information~~. Vishay~~ ; provided that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this Section ~~4.6 unless (i)~~ 7.08 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (cf) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 3 contracts

Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Xerox Corp), Separation and Distribution Agreement (CONDUENT Inc)

Privileged Matters. (a) ~~Vishay~~ The parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Cardinal Health Group and the CareFusion Group, and that each of the members of the Cardinal Health Group and the CareFusion Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Cardinal Health Group or the CareFusion Group, as the case may be. (b) The parties agree as follows: (i) Cardinal Health shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the Cardinal Heath Business and not to the CareFusion Business, whether or not the privileged Information is in the possession or under the control of any member of the Cardinal Health Group or any member of the CareFusion Group. Cardinal Health shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Excluded Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Cardinal Health Group or any member of the CareFusion Group; and (ii) CareFusion shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the CareFusion Business and not to the Cardinal Health Business, whether or not the privileged Information is in the possession or under the control of any member of the CareFusion Group or any member of the Cardinal Health Group. CareFusion shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any CareFusion Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the CareFusion Group or any member of the Cardinal Health Group. (c) Subject to the restrictions set forth in this Section 4.8, the parties agree that they shall have a shared privilege, each with equal right to assert or waive any such shared privilege, with respect to all privileges not allocated pursuant to Section 4.8(b) and all privileges relating to any Actions or other matters that involve both the Cardinal Health Group and the CareFusion Group and in respect of which both parties have Liabilities under this Agreement. (d) Subject to Sections 4.8(e) and (f), no party may waive any privilege that could be asserted under any applicable Law, and in which the other party has a shared privilege, without the consent of the other party, which consent shall (i) not be unreasonably withheld, conditioned or delayed, (ii) be in writing and (iii) be deemed to be granted unless written objection is made within twenty (20) days after notice has been given to the other party requesting such consent. (e) In the event of any Actions between Cardinal Health and CareFusion, or any members of their respective Groups, either party may waive a privilege in which the other party or member of such other party’s Group has a shared privilege, without obtaining consent pursuant to Section 4.8(d); provided, that such waiver of a shared privilege shall be effective only as to the use of Information with respect to the Action between the parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any third Person. (f) If any dispute arises between Cardinal Health and CareFusion, or any members of their respective Groups, regarding whether a privilege should be waived to protect or advance the interests of either the Cardinal Health Group or the CareFusion Group, 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, condition or delay consent to any request for waiver by the other party. Further, each party specifically agrees that it will not withhold its consent to the waiver of a privilege for any purpose except to protect its own legitimate interests. (g) Upon receipt by either party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information of subject to a shared privilege or as to which another party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 and to assert any rights it or they may have under this Section ~~4.6~~ 4.8 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Cardinal Health and ~~VPG’s respective agreements, as~~ CareFusion set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 4.8 and in Section 6.2 to maintain the confidentiality of ~~such~~ privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The parties agree that their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition~~ . (i) In furtherance of the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ parties’ agreement under this Section ~~4.6~~4.8, Cardinal Health and CareFusion shall, and shall cause applicable members of their respective Group to, maintain their respective separate and joint privileges, including by executing joint defense and common interest agreements where necessary or useful for this purpose.

Appears in 3 contracts

Samples: Separation Agreement (CareFusion Corp), Separation Agreement (CareFusion Corp), Separation Agreement (Cardinal Health Inc)

Privileged Matters. To allocate the interests of each Party with respect to privileged information, the Parties agree as follows: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ Bentley shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the ~~Vishay Business or the MGF~~ Bentley Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of Bentley or CPEX. Bentley 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 ~~member~~ claims constituting Liabilities of ~~its~~ Bentley and the Bentley Group~~; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other Actions initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby Bentley, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group Bentley or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~CPEX. (b) CPEX shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the CPEX Business, whether or not the privileged information is in the possession of or under the control of Bentley or CPEX. CPEX 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 CPEX Liabilities, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by CPEX, whether or not the privileged information is in the possession of CPEX or under the control of Bentley or CPEX. (c) Bentley and CPEX agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions of this Section 8.5, with respect to all privileges not allocated pursuant to the terms of Sections 8.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes or other matters which involve both Bentley and CPEX in respect of which Bentley and CPEX retain any responsibility or liability under this Agreement shall be subject to a shared privilege. (d) No Party may waive any privilege which could be asserted under any applicable law, if the other Party has a shared privilege, without the consent of the other Party, except to the extent reasonably required in connection with any litigation with Third Parties or as provided in Section 8.5(e) below. 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. (e) In the event of any litigation or dispute between a member of the Bentley Group and a member of the CPEX Group, either Party may waive a privilege in which the other Party 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 Bentley Group and the CPEX Group, and shall not operate as a waiver of the shared privilege with respect to Third Parties. (f) If a dispute arises between the Parties 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 ~~Vishay or VPG, or~~ any ~~of the members of the respective Groups, as the case may be,~~ Party of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information 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 ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 may have under this Section ~~4.6~~ 8.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Bentley and ~~VPG’s respective agreements~~CPEX, as set forth in ~~Section 4.5~~ Sections 8.4 and 8.5 and elsewhere in this ~~Section 4.6~~Agreement, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~assert and maintain applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 8.1 and ~~4.4~~ 8.2, the agreement to provide witnesses and individuals pursuant to Section 8.3 and the ~~disclosure to VPG~~ transfer of privileged information between the Bentley Group and ~~Vishay of Privileged Information relating to~~ the ~~MGF Business or the Vishay Business~~ CPEX Group pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (CPEX Pharmaceuticals, Inc.), Separation and Distribution Agreement (CPEX Pharmaceuticals, Inc.), Separation and Distribution Agreement (Bentley Pharmaceuticals Inc)

Privileged Matters. (a) ~~Vishay~~ Bio-Vascular and ~~VPG~~ Vital Images agree that ~~their respective rights and obligations to~~ Vital Images will maintain, ~~preserve~~preserve and assert all privileges, ~~assert~~ including, without limitation, any privilege or protection arising under or relating to any attorney- client relationship (including, without limitation, the attorney- client and work product privileges), that existed prior to the Distribution Date ("Privilege" or "Privileges"). Vital Images will not waive any or all privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other Privilege that could be asserted under applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) law without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this AgreementBio-Vascular. The rights and obligations created by this ~~Section 4.6 shall~~ paragraph apply to all ~~Information (“Privileged Information”)~~ information as to ~~which Vishay or VPG or their respective Groups~~ which, but for the Distribution, Bio-Vascular would be have been entitled to assert or ~~have asserted~~ did assert the protection of a Privilege ~~without regard to the effect~~("Privileged Information"), ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes~~ including but is not limited to (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Distribution Date but which, ~~whether or not such Information (other than VPG Information)~~ after the Distribution, is in the possession of ~~VPG or any member of its Group~~Vital Images; ~~and~~ (xii) all communications subject to a Privilege occurring prior to the Distribution Date between counsel for ~~Vishay (including~~ Bio-Vascular and any ~~Person~~ person who, at the time of the communication, was an employee of ~~Vishay or its Group in the capacity of in~~Bio-~~house counsel~~Vascular, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its GroupVital Images Employee; and (yiii) all ~~communications subject to a Privilege occurring~~ information generated, received or arising after the Distribution ~~between counsel for~~ Date that refers or relates to Privileged Information generated, received or arising prior to the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupDistribution Date. (b) Upon receipt by ~~Vishay or VPG,~~ Vital Images or any of ~~the members of the respective Groups, as the case may be,~~ its Affiliates of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or~~ arguably calls for the production or disclosure of Privileged ~~Information of the other~~ Information, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ Vital Images obtains knowledge that any current or former employee of ~~Vishay or VPG, as the case may be, receives~~ Vital Images has received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be, shall~~ Vital Images will promptly notify ~~the other~~ Bio-Vascular of the existence of the request and ~~shall~~ will provide ~~the other~~ Bio-Vascular a reasonable opportunity to review the ~~Information~~ information and to assert any rights it may have under this Section ~~4.6~~ 6.6 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Vital Images will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any ~~third party any of the other’s Privileged Information~~ information arguably covered by a Privilege under this Section ~~4.6~~ 6.6 unless (i) ~~the non~~Bio-~~disclosing party~~ Vascular has provided its express written consent to such production or ~~disclosure~~ disclosure; or (ii) a court of competent jurisdiction has entered an a final, non-appealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable privilege~~, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, a waiver of any Privilege that has been or may be asserted under this Section 4.6 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6.

Appears in 3 contracts

Samples: Distribution Agreement (Vital Images Inc), Distribution Agreement (Vital Images Inc), Distribution Agreement (Vital Images Inc)

Privileged Matters. (a) ~~Vishay~~ The parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Agilent Group and the Keysight Group, and that each of the members of the Agilent Group and the Keysight Group shall be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Agilent Group or the Keysight Group, as the case may be. (b) Notwithstanding anything to the contrary in this Article IV, the parties agree as follows: (i) Agilent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the Agilent Business and not to the Keysight Business, whether or not the privileged Information is in the possession or under the control of any member of the Agilent Group or any member of the Keysight Group. Agilent shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Excluded Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Agilent Group or any member of the Keysight Group; and (ii) Keysight shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the Keysight Business and not to the Agilent Business, whether or not the privileged Information is in the possession or under the control of any member of the Keysight Group or any member of the Agilent Group. Keysight shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Keysight Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Keysight Group or any member of the Agilent Group. (c) Subject to the restrictions set forth in this Section 4.8, the parties agree that they shall have a shared privilege, each with equal right to assert or waive any such shared privilege, with respect to all privileges not allocated pursuant to Section 4.8(b) and all privileges relating to any Actions or other matters that involve both the Agilent Group and the Keysight Group and in respect of which both parties have Liabilities under this Agreement. (d) Subject to Sections 4.8(e) and (f), no party may waive any privilege that could be asserted under any applicable Law, and in which the other party has a shared privilege, without the consent of the other party, which consent shall (i) not be unreasonably withheld, conditioned or delayed, (ii) be in writing and (iii) notwithstanding clause (ii), be deemed to be granted unless written objection is made within twenty (20) days after notice has been given by the party requesting such consent of the other party. (e) If any dispute arises between Agilent and Keysight, or any members of their respective Groups, regarding whether a privilege should be waived to protect or advance the interests of either the Agilent Group or the Keysight Group, 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, condition or delay consent to any request for waiver by the other party. Nevertheless, each party is permitted to withhold its consent to the waiver of a privilege for the purpose of protecting its own legitimate interests. (f) Upon receipt by either party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information of subject to a shared privilege or as to which the other party has the sole right under this Agreement to assert a privilege, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 and to assert any rights it or they may have under this Section ~~4.6~~ 4.8 or otherwise to prevent the production or disclosure of ~~Privileged~~ such privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (cg) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Agilent and ~~VPG’s respective agreements, as~~ Keysight set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 4.8 and in Section 6.2 to maintain the confidentiality of ~~such~~ privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The parties agree that their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition~~ . (h) In furtherance of the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ parties’ agreement under this Section ~~4.6~~4.8, Agilent and Keysight shall, and shall cause applicable members of their respective Group to, maintain their respective separate and joint privileges, including by executing joint defense and common interest agreements where necessary or useful for this purpose.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Keysight Technologies, Inc.), Separation and Distribution Agreement (Agilent Technologies Inc), Separation and Distribution Agreement (Keysight Technologies, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ shall be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”),~~ Effective Time have been and shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Aptiv Group and the Delphi Technologies Group, and that each of the members of the Aptiv Group and the Delphi Technologies Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided after the Effective Time, which services will be rendered solely for the benefit of the Aptiv Group or the Delphi Technologies Group, as the case may be. (b) The Parties agree as follows: (i) Aptiv shall 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 Aptiv Business, whether or not the Privileged Information is in the possession or under the control of a member of the Aptiv Group or 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 any Privileged Information that relates solely to any Aptiv Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of a member of the Aptiv Group or the Delphi Technologies Group; (ii) Delphi Technologies shall 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 Delphi Technologies Business, whether or not the Privileged Information is in the possession or under the control of a member of the Aptiv Group or 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 any Privileged Information that relates solely to any Delphi Technologies Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of a member of the Aptiv Group or the 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) Subject to Sections 6.8(d) and 6.8(e), the Parties agree that they shall have a shared privilege or immunity with respect to all privileges not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the written consent of the other Party. (d) If any dispute arises between the Parties, or any member of their respective Groups, 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except to protect its own legitimate interests. (e) Upon receipt by any member of the Delphi Technologies Group of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information ~~of the other~~ subject to a shared privilege or ~~if Vishay~~ immunity or ~~VPG,~~ as to which Aptiv or any of ~~members of their respective Groups~~its Subsidiaries has the sole right hereunder to assert a privilege or immunity, ~~as the case may be,~~ or if Delphi Technologies obtains knowledge that any of its, or any member of the Delphi Technologies Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ Delphi Technologies shall promptly ~~notify the other~~ 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~~ Aptiv a reasonable opportunity to review the Information and to assert any rights it or they may ~~have~~ have, including under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (f) Upon receipt by any member of 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 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 the Parties set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return or transfer, as the case may be, such Privileged Information to ~~reduce~~the Party who has the right to assert the privilege or immunity. (h) In furtherance of, ~~minimize or condition~~ and without limitation to, the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ Parties’ agreement under this Section ~~4.6~~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

Samples: Separation and Distribution Agreement (Delphi Technologies PLC), Separation and Distribution Agreement (Delphi Technologies PLC), Separation and Distribution Agreement (Delphi Automotive PLC)

Privileged Matters. ~~(a) Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ the ~~respective members~~ Effective Time have been rendered for the collective benefit of each of the Parent Group and each of their respective members and the SpinCo Group and each of their respective members, and that each of the Group Members shall be deemed to be the client with respect to such services. To allocate the ~~Vishay Business or~~ interests of each Party in the ~~MGF Business, including but not limited to the attorney-client, work product privileges~~ Privileged Information or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (~~“Privileged Information”~~including, for the avoidance of doubt, any Information about Patents, Trademarks, or Other Intellectual Property) as in connection with legal or other professional services that have been provided prior to ~~which Vishay or VPG or~~ the Effective Time for the collective benefit of each of the Parties and their respective ~~Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its~~ Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”))Members, whether or not such a privilege, immunity or protection exists or the existence of which is in dispute (collectively, “Common Privileges”), the Parties hereto agree as follows: (a) Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges, immunities and protections in connection with Privileged Information ~~(other than VPG Information)~~ which relates to activity prior to the Effective Time regarding the Progressive Leasing and Vive Business and, subject to Section 6.08(c), not to the Aaron’s Business, whether or not the Privileged Information is in the possession of ~~VPG~~ or under the control of any Parent Group Member or any ~~member~~ SpinCo Group Member. Parent also shall be entitled, in perpetuity, to control the assertion or waiver of ~~its Group;~~ all privileges, immunities and ~~(x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group~~ protections in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. connection with Privileged Information ~~of VPG~~ which relates to activity prior to the Effective Time regarding any pending or future Action that is, or which Parent reasonably anticipates may become, a Parent Liability and ~~its Group includes but~~ that is not ~~limited to (x) any and all VPG Information~~also, or that Parent reasonably anticipates will not become, a SpinCo Liability or a Shared Action Liability, whether or not it the Privileged Information is in the possession of ~~Vishay~~ or under the control of any Parent Group Member or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its SpinCo Group ~~or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~Member. (b) ~~Upon receipt~~ Subject to Section 6.08(c), SpinCo 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 activity prior to the Effective Time regarding the Aaron’s Business and not to the Progressive Leasing and Vive Business, whether or not the Privileged Information is in the possession of or under the control of any Parent Group Member or any SpinCo Group Member. SpinCo 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 activity prior to the Effective Time regarding any pending or future Action that is, or which SpinCo reasonably anticipates may become, a SpinCo Liability and that is not also, or that SpinCo reasonably anticipates will not become, a Parent Liability or a Shared Action Liability, whether or not the Privileged Information is in the possession of or under the control of any Parent Group Member or any SpinCo 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 or until a court orders otherwise. The Parties shall use the procedures set forth in ARTICLE IX to resolve any disputes as to whether any information relates to any pending or future Action that is, or is reasonably anticipated to become, a SpinCo Liability or a Parent Liability. (d) Subject to the restrictions in this Section 6.08, the Parties agree that they shall have equal right to assert all Common Privileges not allocated pursuant to the terms of Section 6.08(a), Section 6.08(b), or Section 6.08(c) (collectively, “Shared Privileges”), and all privileges, immunities and protections relating to any Actions or other matters that involve both Parties (or one or more of their respective Group Members) and in respect of which both Parties have Liabilities under this Agreement (including any Shared Action Liability), and that no such Shared Privilege may be waived by ~~Vishay~~ either Party (or ~~VPG~~any of its Group Members) without the consent of the other Party. 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. (e) If a dispute arises between any Parent Group Member, on the one hand, and any SpinCo 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 Action or other dispute between or among any of the Parties, or any of their respective Group Members, either such Party may use any Privileged Information in which the ~~members~~ other Party or its Group Members has a Shared Privilege, without obtaining the consent of the ~~respective Groups~~other Party; provided, that such use shall be limited to the Action or other dispute between the relevant Parties and/or the applicable Group Members, respectively, and shall not operate as or be used by either Party as a basis for asserting a waiver of the ~~case may be~~Shared Privilege with respect to Third 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) Upon receipt by either Party hereto or by any Group Member of its Group of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of Privileged Information of or other Information subject to a 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 ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its Group’s current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably ~~calls~~ call for the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 (7) 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 Privileged Information or other Information and to assert any rights it or any Group Member of its Group may have under this Section ~~4.6~~ 6.08 or otherwise to prevent the production or disclosure of such Privileged Information. ~~Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to~~ Each Party shall bear its own expenses in connection with any ~~third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to~~ such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5request. (cg) ~~Vishay’s transfer of books and records pertaining~~ Any furnishing of, or access to, Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Parent and ~~VPG’s respective agreements~~SpinCo, as set forth in ~~Section 4.5 and~~ this ~~Section 4.6,~~ ARTICLE VI to maintain the confidentiality of ~~such~~ the Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG~~applicable privileges, ~~as the case may be~~immunities and protections. The access to ~~Information, witnesses and individuals~~ Privileged Information or other Information being granted ~~pursuant to Sections 4.3 and 4.4~~ and the ~~disclosure~~ agreement to ~~VPG~~ provide witnesses herein, the furnishing of notices and ~~Vishay~~ documents and other cooperative efforts provided hereby, and the transfer of Privileged Information ~~relating to~~ between and among the ~~MGF Business or the Vishay Business~~ Parties hereto and of their respective Group Members pursuant ~~to this Agreement in connection with the Separation and Distribution~~ hereto shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege, immunity or protection that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 VI 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 ~~operate~~ promptly return such Privileged Information to ~~reduce~~the Party who has the right to assert the privilege, ~~minimize~~ immunity or ~~condition~~ protection. (h) In furtherance of, and without limitation to, the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ Parties’ agreement under this Section ~~4.6~~6.08, Parent and SpinCo 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 3 contracts

Samples: Separation and Distribution Agreement (PROG Holdings, Inc.), Separation and Distribution Agreement (Aaron's SpinCo, Inc.), Separation and Distribution Agreement (Aaron's SpinCo, Inc.)

Privileged Matters. The parties hereto recognize that legal and other professional services that have been and will be provided prior to the Distribution Date have been and will be rendered for the benefit of each of the members of the Florida Progress Group and the members of the Echelon Group, and that each of the members of the Florida Progress Group and the members of the Echelon Group should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable law. 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ Florida Progress shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the ~~Vishay Business or the MGF~~ Florida Progress Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of Florida Progress or Echelon. 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~claims constituting Florida Progress Liabilities, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other proceedings initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby Florida Progress, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group Florida Progress or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~Echelon. (b) 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 Echelon Business, whether or not the privileged information is in the possession of or under the control of Florida Progress or Echelon. Echelon 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 Echelon Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Echelon, whether or not the privileged information is in the possession of Echelon or under the control of Florida Progress or Echelon. (c) The parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 6.6, with respect to all privileges not allocated pursuant to the terms of Sections 6.6(a) and (b) hereto. All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both Florida Progress and Echelon in respect of which both Florida Progress and Echelon retain any responsibility or liability under this Agreement shall be subject to a shared privilege between them. (d) No party hereto may waive any privilege which could be asserted under any applicable law, and in which the other party hereto has a shared privilege, without the consent of the other party, except to the extent reasonably required in connection with any litigation with third parties or as provided in subsection (e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 20 days after notice upon the other party requesting such consent. (e) In the event of any litigation or dispute between the parties hereto, a party and a Subsidiary of the other party hereto, or a Subsidiary of one party hereto and a Subsidiary of other party hereto, either such party may waive a privilege in which the other party 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 parties and/or their Subsidiaries, and shall not operate as a waiver of the shared privilege with respect to third parties. (f) If a dispute arises between the parties hereto or their 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 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 ~~Vishay~~ either party hereto or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information 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 ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either party obtains knowledge that any of its or any of its Subsidiaries' current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 may have under this Section ~~4.6~~ 6.6 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Florida Progress and ~~VPG’s respective agreements~~Echelon, as set forth in ~~Section 4.5~~ Sections 6.5 and ~~this Section 4.6~~6.6, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 6.1 and ~~4.4~~ 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 ~~disclosure to VPG~~ transfer of privileged information between the parties and ~~Vishay of Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Subsidiaries pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Distribution Agreement (Florida Power Corp /), Distribution Agreement (Echelon International Corp), Distribution Agreement (Echelon International Corp)

Privileged Matters. (a) ~~Vishay~~ The parties hereto recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain~~the Distribution Date have been and will be rendered for the collective benefit of each of the members of the Parent Group and the SpinCo Group, ~~preserve, assert or waive any or~~ and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client for the purposes of asserting all privileges ~~belonging to either party or~~ that may be asserted under applicable Law. (b) Except as otherwise specifically provided in the ~~respective members of their respective Group~~ Tax Disaffiliation Agreement with respect to tax matters, to allocate the ~~Vishay Business or~~ interests of each party in the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) information as to which ~~Vishay or VPG or their respective Groups would be~~ any party is entitled to assert a privilege, the parties agree as follows: (i) Parent shall be entitled, in perpetuity, to control the assertion or ~~have asserted a Privilege without regard~~ waiver of all privileges in connection with privileged information that relates solely to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”))Parent Business, whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of Parent or SpinCo. 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~claims constituting Parent Liabilities, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any Action initiated against or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby Parent, whether or not it the privileged information is in the possession of ~~Vishay~~ or under the control of Parent or SpinCo. (ii) SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information that relates solely to the SpinCo Business, whether or not the privileged information is in the possession of or under the control of Parent or SpinCo. 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 ~~member~~ claims constituting SpinCo Liabilities, now pending or that may be asserted in the future, in any Action initiated against or by SpinCo, whether or not the privileged information is in the possession of ~~its Group;~~ SpinCo or under the control of Parent or SpinCo. (c) The parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 4.5, with respect to all privileges not allocated pursuant to the terms of Sections 4.5(b). All privileges relating to any Action, disputes, or other matters that involve Parent and ~~(y) all communications~~ SpinCo in respect of which such parties retain any responsibility or liability under this Agreement, shall be subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupshared privilege among them. (bd) No party hereto may waive any privilege that could be asserted under any applicable Law, and in which any other party hereto has a shared privilege, without the consent of the other party, which consent shall not be unreasonably withheld or delayed, except to the extent reasonably required in connection with any Action with Third Parties or as provided in subsection (e) below. Any such consent shall be in writing, or shall be deemed to be granted unless written objection is made within 20 days after notice upon the other party requesting such consent. (e) In the event of any Action or dispute between one or more members of the Parent Group on the one hand, and one or more members of the SpinCo Group on the other hand, then any such party, to the extent necessary in connection with such Action or dispute, may waive a privilege in which the other party 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 Action or dispute between the relevant parties and/or their Subsidiaries, 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 hereto or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of any party, each party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other parties, and shall not unreasonably withhold consent to any request for waiver by another party. Each 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 ~~Vishay~~ any party hereto or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or~~ arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ party obtains knowledge that any of its or any of its Subsidiaries’ current or former ~~employee of Vishay or VPG, as the case may be, receives~~ Representatives has received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or~~ arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 (to the extent such information is available to such party) and to assert any rights it or they may have under this Section ~~4.6~~ 4.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Parent and ~~VPG’s respective agreements~~SpinCo, as set forth in ~~Section 4.5~~ Sections 4.4 and ~~this Section 4.6~~4.5, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 4.1 and ~~4.4~~ 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 ~~disclosure to VPG~~ transfer of privileged information between and ~~Vishay of Privileged Information relating to~~ among the ~~MGF Business or the Vishay Business~~ parties and their respective Subsidiaries pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Agreement and Plan of Distribution (Zep Inc.), Agreement and Plan of Distribution (Acuity Brands Inc), Agreement and Plan of Distribution (Acuity SpinCo, Inc.)

Privileged Matters. (a) ~~Vishay~~ Each party hereto acknowledges that: (i) each party and ~~VPG agree~~ its Affiliates has or may obtain Privileged Information; (ii) there are and/or may be a number of Litigation Matters affecting both of Buyer and Seller; (iii) both Buyer and Seller have a common legal interest in Litigation Matters, in the Privileged Information and in the preservation of the confidential status of the Privileged Information, in each case relating to the Transferred Business; and (iv) both Buyer and Seller intend that ~~their respective rights~~ the transactions contemplated hereby and ~~obligations~~ by the Agreement and the Ancillary Documents and any transfer of Privileged Information in connection therewith shall not operate as a waiver of any potentially applicable privilege. (b) Following the Closing, each of Buyer and Seller agrees, on behalf of itself and each of its Subsidiaries, not to ~~maintain, preserve, assert~~ disclose or otherwise waive any ~~or all privileges belonging~~ privilege attaching to ~~either party or the respective members of their respective Group with respect~~ any Privileged Information relating to the ~~Vishay~~ Transferred Business ~~or the MGF Business, including but not limited~~ without providing prompt written notice to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and ~~VPG shall take no action (nor permit any member of its Group to take action) without~~ obtaining the prior written consent of ~~Vishay~~ the other, which consent shall not be unreasonably withheld, conditioned or delayed and shall not be withheld, conditioned or delayed if the other party certifies that ~~could result~~ such disclosure is to be made in response to a likely threat of suspension or debarment or similar action; provided, however, that Buyer shall not be required to give any such notice or obtain any such consent and may make such disclosure or waiver ~~of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With~~ with respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all if such Privileged Information ~~(“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard~~ relates solely to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Transferred Business (~~“VPG Information”~~unless such information relates to matters for which Seller may have indemnification obligations under this Agreement or the Ancillary Documents)). In the event of a disagreement concerning the reasonableness of withholding such consent, ~~whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject~~ no disclosure shall be made prior to a ~~Privilege between counsel for Vishay (including any Person who, at the time~~ resolution of ~~the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether~~ such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt disagreement by Vishay or VPG, or any of the members of the respective Groups, as the case may be, of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other or if Vishay or VPG, or any of members of their respective Groups, as the case may be, obtains knowledge that any current or former employee of Vishay or VPG, as the case may be, receives any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other, Vishay or VPG, as the case may be, shall promptly notify the other of the existence of the request and shall provide the other a reasonable opportunity to review the Information and to assert any rights it may have under this Section 4.6 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent ~~jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding~~ jurisdiction, provided that the ~~Information is~~ limitations in this sentence shall not ~~entitled to protection from~~ apply in the case of disclosure ~~under any applicable privilege, doctrine or rule,~~ required by Law and so certified as provided in ~~which case, such Information shall be subject to Section 4.5~~the first sentence of this paragraph. (c) ~~Vishay’s transfer~~ After the Closing, upon receipt of ~~books and records pertaining to the MGF Business and~~ any subpoena or other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to compulsory disclosure notice from a Governmental Entity or ~~be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the~~ otherwise which requests disclosure ~~to VPG and Vishay~~ of Privileged Information relating to the ~~MGF Business~~ Transferred Business, to the extent not prohibited by Law, Seller or Buyer (in the case of information relating to matters for which Seller may have indemnification obligations under this Agreement or the ~~Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute~~Ancillary Documents, or in the case of Privileged Information not solely related to the Transferred Business and in which Seller may have an interest), as applicable, shall as promptly as practicable provide to the other party (following the notice provisions set forth herein) a copy of such notice, the intended response, and all materials or information that might be disclosed and the proposed date of disclosure. In the event of a disagreement as to the intended response or disclosure, unless and until the disagreement is resolved as provided in paragraph (b) of this Section, the disclosing party shall, at the other party’s expense, cooperate to the extent such other party seeks to limit such disclosure and take all reasonable steps to resist or avoid such disclosure, except as otherwise ~~deemed,~~ required by a ~~waiver of any Privilege that has been or may be asserted under this Section 4.6 or otherwise.~~ court order requiring such disclosure. (d) Nothing in this Section 6.9 shall limit a party’s ability to assert its rights under this Agreement ~~shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in,~~ or the ~~obligations imposed upon Vishay and VPG by, this Section 4.6~~Ancillary Documents in the event of any dispute between the parties.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Verizon Communications Inc), Securities Purchase Agreement, Securities Purchase Agreement (Frontier Communications Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one (1) or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose, except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement between Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 3 contracts

Samples: Separation and Distribution Agreement (Servicemaster Global Holdings Inc), Separation and Distribution Agreement (Frontdoor, Inc.), Separation and Distribution Agreement (AHS Holding Company, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ the ~~respective~~ Effective Time have been and will be rendered for the collective benefit of each of the members of ~~their respective~~ the PNX Group and the Spinco Group, and that each of the members of the PNX Group and the Spinco Group should be deemed to be the client with respect to such pre-separation services for the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product~~ purposes of asserting all privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could which may be asserted ~~by Vishay or any member of its Group~~ under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupapplicable Law. (b) ~~Upon receipt by Vishay~~ 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 PNX or ~~VPG, or any of the members of the respective Groups~~Spinco, as the case may be. With respect to such post-separation services, the Parties agrees as follows: (i) PNX shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the PNX Business, whether or not the privileged information is in the possession of or under the control of PNX or Spinco. PNX 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 PNX Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by PNX, whether or not the privileged information is in the possession of or under the control of PNX or Spinco; and (ii) 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 Spinco Business, whether or not the privileged information is in the possession of or under the control of PNX or Spinco. 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 Spinco Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Spinco, whether or not the privileged information is in the possession of or under the control of PNX or 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 11.05, with respect to all privileges not allocated pursuant to the terms of Section 11.05(b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both PNX and Spinco 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 11.05(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 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 Group’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 their 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 subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information 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 ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its or any of its Subsidiaries’ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 11.05 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of PNX and ~~VPG’s respective agreements,~~ Spinco as set forth in Section ~~4.5~~ 11.04 and ~~this~~ Section ~~4.6~~11.05, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps~~ assert and maintain all applicable privileges. Nothing provided for herein ~~for the preservation of all Privileges that may belong to~~ or in any Ancillary Agreement shall be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Separation Agreement, Plan of Reorganization and Distribution (Phoenix Companies Inc/De), Separation Agreement (Virtus Investment Partners, Inc.), Separation Agreement, Plan of Reorganization and Distribution (Virtus Investment Partners, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Tech Group and the Fuels Group, and that each of the members of the Tech Group and the Fuels Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Tech Group or the Fuels Group, as the case may be. (b) The Parties agree as follows: (i) Tech shall 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 Tech Business and not to the Fuels Business, whether or not the Privileged Information is in the possession or under the control of any member of the Tech Group or any member of the Fuels Group. Tech shall also 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 any Tech Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Tech Group or any member of the Fuels Group; and (ii) Fuels shall 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 Fuels Business and not to the Tech Business, whether or not the Privileged Information is in the possession or under the control of any member of the Fuels Group or any member of the Tech Group. Fuels shall also 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 any Fuels Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Fuels Group or any 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) Subject to the remaining provisions of this Section 5.08, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 5.08(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party 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, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or Dispute between Tech and Fuels, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 5.08(c); provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of such Party’s respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of such Party’s respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 5.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the covenants and agreements of Tech and Fuels set forth in this Section 5.08 and in Section 5.09 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that (i) their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege or immunity that has been or may be asserted under this Agreement or otherwise 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 ~~4.6~~ 5.07 or ~~otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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

Samples: Master Distribution Agreement (Taronis Fuels, Inc.), Master Distribution Agreement (Taronis Fuels, Inc.), Master Distribution Agreement (Taronis Fuels, Inc.)

Privileged Matters. (a) ~~Vishay~~ Each of Xxxxxxxx-Xxxxx and ~~VPG agree that their respective rights and obligations~~ Halyard agrees to maintain, ~~preserve~~preserve and assert all privileges, ~~assert~~ including, without limitation, privileges arising under or ~~waive any or all privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited~~ relating to the attorney-~~client,~~ client relationship (which shall include without limitation the attorney-client and work product ~~privileges or~~ privileges), not heretofore waived, that relate to the Halyard Business and the Transferred Assets for any ~~other applicable privileges~~ period prior to the Effective Time (~~individually, a~~ “Privilege” or “Privileges”), . Each Party acknowledges and agrees that any costs associated with asserting any Privilege shall be ~~governed~~ borne by the ~~provisions of this Section 4.6~~Party requesting that such privilege be asserted. ~~With respect to Privileged Information of Vishay, Vishay~~ Each Party agrees that it shall ~~have sole authority in perpetuity to determine whether to assert or~~ not waive any ~~or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action)~~ Privilege that could be asserted under applicable law without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the ~~prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement~~other Party. The rights and obligations created by this Section ~~4.6~~ 12.8 shall apply to all ~~Information~~ information relating to the Halyard Business as to which, but for the Distribution, either Party would have been entitled to assert or did assert the protection of a Privilege (“Privileged Information”~~) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege~~ ), including without ~~regard to the effect~~limitation, ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to~~ (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Effective Time but which, ~~whether or not such Information (other than VPG Information)~~ after the Distribution, is in the possession of ~~VPG or any member of its Group~~either Party; and (xii) all ~~communications subject~~ information generated, received or arising after the Effective Time that refers to ~~a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay~~ or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. relates to Privileged Information ~~of VPG and its Group includes but is not limited~~ generated, received or arising prior to ~~(x) any and all VPG Information, whether or not it is in~~ the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupEffective Time. (b) Upon receipt by ~~Vishay or VPG, or any of the members of the respective Groups, as the case may be,~~ either Party of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged Information ~~of the other~~ or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any current or former employee of ~~Vishay~~ Xxxxxxxx-Xxxxx or ~~VPG, as the case may be, receives~~ Halyard has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall notify 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 may have under this Section ~~4.6~~ 12.8 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Each Party agrees that it will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any ~~third party any of the other’s Privileged Information~~ information that may be covered by a Privilege under this Section ~~4.6~~ 12.8 unless (i) the ~~non-disclosing party~~ other Party has provided its ~~express~~ written consent to such production or disclosure (which consent shall not be unreasonably withheld), or (ii) a court of competent jurisdiction has entered an a final, nonappealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable ~~privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~Privilege. (c) ~~Vishay’s~~ Xxxxxxxx-Xxxxx’x transfer of books and records ~~pertaining to the MGF Business~~ and other ~~Information~~ information to ~~VPG~~Halyard, ~~Vishay’s~~ and Xxxxxxxx-Xxxxx’x agreement to permit ~~VPG~~ Halyard to ~~obtain~~ possess Privileged Information existing or generated prior to the ~~Distribution~~Effective Time, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on ~~Vishay~~Halyard’s ~~and VPG’s respective agreements~~agreement, as set forth in ~~Section 4.5~~ Sections 12.7 and ~~this Section 4.6~~12.8, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to ~~Sections 4.3~~ Section 12.1, the agreement to provide witnesses and ~~4.4~~ individuals pursuant to Section 12.6 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating~~ to ~~the MGF Business or the Vishay Business~~ Halyard pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 12.8 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay and VPG~~ the Parties in, or the obligations imposed upon ~~Vishay and VPG~~ the Parties by, this Section ~~4.6~~12.8.

Appears in 3 contracts

Samples: Distribution Agreement (Halyard Health, Inc.), Distribution Agreement (Halyard Health, Inc.), Distribution Agreement (Halyard Health, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Distribution Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~iStar Group and the SpinCo Group, and that each of the members of the iStar Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Distribution Effective Time, which services will be rendered solely for the benefit of the iStar Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) iStar shall 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 Excluded Business and not to the Transferred Business, whether or not the Privileged Information is in the possession or under the control of any member of the iStar Group or any member of the SpinCo Group. iStar shall also 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 any Excluded Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the iStar Group or any member of the SpinCo Group; (ii) SpinCo shall 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 Transferred Business and not to the Excluded Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the iStar Group. SpinCo shall also 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 any Assumed Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any 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) Subject to the remaining provisions of this Section 6.7, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.7(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party 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, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or dispute between iStar and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.7(c); provided that such waiver of a shared privilege shall be effective only as to the use of Information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.7 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information~~. Vishay or VPG, as~~ . (g) In the ~~case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to~~ event either Party inadvertently discloses any ~~third party any of the other’s~~ Privileged Information ~~under this Section 4.6 unless~~ or inadvertently waives any privilege or immunity as to which the other Party has any interest, that Party shall immediately (i) advise the ~~non-disclosing party has provided its express written consent to such production or~~ other Party of the inadvertent disclosure or waiver and (ii) ~~a court of competent jurisdiction has entered an order not subject~~ take all reasonably available steps to ~~interlocutory appeal~~ claw back any waived or ~~review (~~disclosed Information and restore the privilege or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5immunity. (ch) ~~Vishay’s~~ Any furnishing of, or access or transfer ~~of books and records pertaining~~ of, any Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of iStar and ~~VPG’s respective agreements, as~~ SpinCo set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 6.7 and in Section 6.8 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The Parties agree that their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to~~ between the ~~MGF Business or the Vishay Business~~ Parties and members of their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (i) In connection with any matter contemplated by Section 6.6 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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

Samples: Separation and Distribution Agreement (Istar Inc.), Separation and Distribution Agreement (Star Holdings), Merger Agreement (Istar Inc.)

Privileged Matters. ~~(a) Vishay~~ SECTION 8.10.1 Parent and ~~VPG~~ Sub agree ~~that their respective rights and obligations~~ to maintain, ~~preserve,~~ preserve and assert ~~or waive any or~~ all privileges ~~belonging to~~ that either party may have, including, without limitation, any privilege or protection arising under or relating to any attorney-client or accountant-client relationship that existed prior to the ~~respective members~~ Effective Date ("Privilege" or "Privileges"). Parent and Sub shall be entitled in perpetuity to require the assertion or decide whether to consent to the waiver of ~~their respective Group~~ any and all Privileges which, in the case of Sub, relate to the Sub Business and, in the case of Parent, relate to the Retained Business. Parent and Sub shall each use the same degree of care as it would with respect to ~~the Vishay Business or the MGF Business, including but~~ itself so as not ~~limited~~ to ~~the attorney-client, work product privileges or~~ waive- any ~~other applicable privileges (individually, a “Privilege”), shall~~ Privilege which could be ~~governed~~ asserted by the ~~provisions of this Section 4.6. With respect to Privileged Information of Vishay~~other party under applicable law, ~~Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action)~~ without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the ~~prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement~~other party. The rights and obligations created by this Section ~~4.6~~ 8.10 shall apply to all ~~Information (“Privileged Information”)~~ information as to ~~which Vishay~~ which, but for the Reorganization, Parent or ~~VPG or their respective Groups~~ Sub would be have been entitled to assert or ~~have asserted~~ did assert the protection of a Privilege ~~without regard~~ ("Privileged Information"), including, but not limited to, (a) all information generated prior to the ~~effect~~Effective Date but which, ~~if any~~after the Reorganization, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of ~~VPG~~ the other party or ~~any member of~~ its Group~~; and~~ , (xb) all communications subject to a Privilege occurring prior to the Effective Date between counsel for ~~Vishay (including~~ Parent and any ~~Person~~ individual who, at the time of the communication, was an employee of ~~Vishay or its Group in the capacity of in-house counsel~~Parent, regardless of whether such employee is or becomes an employee of ~~VPG~~ Sub, and (c) all information generated, received or ~~any member of its Group) and any Person who, at~~ arising after the ~~time of the communication, was an employee of Vishay, regardless of whether such employee is~~ Effective Date that refers or ~~becomes an employee of VPG or any member of its Group.~~ relates to Privileged Information ~~of VPG and its Group includes but is not limited~~ generated, received or arising prior to ~~(x) any and all VPG Information, whether or not it is in~~ the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupEffective Date. ~~(b)~~ SECTION 8.10.2 Upon the receipt by ~~Vishay or VPG, or any of the members of the respective Groups, as the case may be,~~ either party of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for production or disclosure of Privileged Information of the other party and whenever either party obtains knowledge that any current or former employee of such party has received any subpoena, discovery or other request which arguably calls of the production or disclosure of Privileged Information of the other ~~or if Vishay or VPG~~party, or any of members of their respective Groups, as the case may be, obtains knowledge that any current or former employee of Vishay or VPG, as the case may be, receives any subpoena, discovery or other request from any third such party ~~that actually or arguably calls for the production or disclosure of Privileged Information of the other, Vishay or VPG, as the case may be,~~ shall promptly notify the other party of the existence of the request and shall provide the other party with a reasonable opportunity to review the ~~Information~~ information and to assert any rights it may have under this Section ~~4.6~~ 8.10 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Neither party will ~~not, and will cause the members of their respective Groups to not,~~ produce or disclose to any ~~third party any~~ information covered by a Privilege of the ~~other’s Privileged Information~~ other party under this Section ~~4.6~~ 8.10 unless (ia) the ~~non-disclosing~~ other party has provided its express written consent to such production or disclosure or (iib) a court of competent jurisdiction has entered an a final, non-appealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable ~~privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~Privilege. ~~(c) Vishay’s~~ SECTION 8.10.3 Parent's transfer of ~~books and records pertaining to the MGF Business and other~~ Information to ~~VPG~~Sub, ~~Vishay’s~~ and each party's agreement to permit ~~VPG~~ the other party to ~~obtain~~ possess Privileged Information ~~existing~~ occurring or generated prior to the ~~Distribution~~Effective Date, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on ~~Vishay’s and VPG’s respective agreements~~each party's agreement, as set forth in ~~Section 4.5 and~~ this Section ~~4.6~~8.10, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ maintain, preserve and assert all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information~~information granted or permitted by this Agreement, the agreement to provide witnesses and individuals ~~being granted~~ pursuant to ~~Sections 4.3~~ Section 8.8 hereof and ~~4.4 and the disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating~~ to ~~the MGF Business or the Vishay Business~~ Sub pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 8.10 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay and VPG~~ either party in, or the obligations imposed upon ~~Vishay and VPG~~ either party by, this Section ~~4.6~~8.10.

Appears in 3 contracts

Samples: Reorganization Agreement (C Quential Inc), Reorganization Agreement (C Quential Inc), Reorganization Agreement (C Quential Inc)

Privileged Matters. 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 Distribution Date have been and will be rendered for the benefit of each of the members of the Cablevision Group, and the members of the MSG Group, and that each of the members of the Cablevision Group, and each of the members of the MSG Group should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable Law. 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ Cablevision shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging~~ in connection with privileged information which relates solely to ~~either party or~~ the ~~respective members of their respective Group~~ Cablevision Business (other than with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) Liabilities as to which ~~Vishay or VPG or their respective Groups would be entitled~~ MSG is required to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)provide indemnification under Article III), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of Cablevision or MSG. 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay~~ Claims constituting Cablevision Liabilities (including ~~any Person who~~Retained Claims Liabilities), ~~at the time of the communication~~or other Liabilities as to which it is required to provide indemnification under Article III, ~~was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationfuture, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group Cablevision or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~MSG. (b) 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 MSG 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 Cablevision or MSG. MSG 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 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 MSG, whether or not the privileged information is in the possession of MSG or under the control of Cablevision or MSG. (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 4.5, with respect to all privileges not allocated pursuant to the terms of Sections 4.5(a) and (b). (d) No Party may waive any privilege which could be asserted under any applicable Law, and in which the other Party has a shared privileged, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed, except to the extent reasonably required in connection with any Third-Party Claims or as provided in subsection (e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within 20 days after notice upon the other Party requesting such consent. (e) In the event of any litigation or dispute between or among the Parties, any Party and a Subsidiary of the other Party, or a Subsidiary of one Party and a Subsidiary of the other Party, either such Party may waive a privilege in which the other Party 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 Parties and/or their Subsidiaries, and shall not operate as a waiver of the shared privilege with respect to any Third-Party Claims. (f) If a dispute arises between or among the Parties or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of 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 ~~Vishay~~ any Party or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its or any of its Subsidiaries’ current or former ~~employee of Vishay or VPG, as the case may be, receives~~ Representatives have received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 4.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Cablevision and ~~VPG’s respective agreements~~MSG, as set forth in ~~Section 4.5~~ Sections 4.2, 4.4 and ~~this Section 4.6~~4.5, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections 4.1, 4.2, and 4.3 hereof, the agreement to provide witnesses and ~~4.4~~ 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 ~~disclosure to VPG~~ transfer of privileged information between and ~~Vishay of Privileged Information relating to~~ among the ~~MGF Business or the Vishay Business~~ Parties and their respective Subsidiaries, Affiliates and Representatives pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Distribution Agreement (Cablevision Systems Corp /Ny), Distribution Agreement (Madison Square Garden, Inc.), Distribution Agreement (Madison Square Garden, Inc.)

Privileged Matters. The parties hereto recognize that legal and other professional services that have been and will be provided prior to the Distribution Date have been and will be rendered for the benefit of each of the Corporation, the members of the NMR Group and the members of the IMS HEALTH Group, and that each of the Corporation, the members of the NMR Group and the members of the IMS HEALTH Group should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable law. 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ The Corporation shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the ~~Vishay Business or the MGF~~ NMR Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or ~~any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at~~ under the ~~time~~ control of the ~~communication~~Corporation or IMS HEALTH. The Corporation shall also be entitled, ~~was an employee~~ in perpetuity, to control the assertion or waiver of ~~Vishay~~ all privileges in connection with privileged information that relates solely to the subject matter of any claims constituting NMR Liabilities, now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other proceedings initiated against or ~~any member of its Group) and any Person who, at~~ by the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG InformationCorporation, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member of its Group; and (y) all communications subject to a Privilege occurring after~~ under the ~~Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time~~ control of the ~~communication, was an employee of VPG, any member of its Group~~ Corporation or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~IMS HEALTH. (b) 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 IMS HEALTH Business, whether or not the privileged information is in the possession of or under the control of the Corporation or IMS HEALTH. IMS HEALTH 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 IMS HEALTH Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by IMS HEALTH whether or not the privileged information is in the possession of or under the control of the Corporation or IMS HEALTH. (c) The parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 4.5, with respect to all privileges not allocated pursuant to the terms of Sections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both the Corporation and IMS HEALTH 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 hereto may waive any privilege which could be asserted under any applicable law, and in which any other party hereto has a shared privilege, without the consent of the other party, except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsection (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. (e) In the event of any litigation or dispute between or among any of the parties hereto, any party and a Subsidiary of another party hereto, or a Subsidiary of one party hereto and a Subsidiary of another party hereto, either such party may waive a privilege in which the other party 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 parties and/or their Subsidiaries, 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 hereto or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of any party, each party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other parties, and shall not unreasonably withhold consent to any request for waiver by another party. Each 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 ~~Vishay~~ any party hereto or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ party obtains knowledge that any of its or any of its Subsidiaries' current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ such party shall promptly notify the other party or parties of the existence of the request and shall provide the other party or parties a reasonable opportunity to review the ~~Information~~ information and to assert any rights it or they may have under this Section ~~4.6~~ 4.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of the Corporation and ~~VPG’s respective agreements~~IMS HEALTH, as set forth in ~~Section 4.5~~ Sections 4.4 and ~~this Section 4.6~~4.5, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 4.1 and ~~4.4~~ 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 ~~disclosure to VPG~~ transfer of privileged information between and ~~Vishay of Privileged Information relating to~~ among the ~~MGF Business or the Vishay Business~~ parties and their respective Subsidiaries pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: Distribution Agreement (Ims Health Inc), Distribution Agreement (Nielsen Media Research Inc), Distribution Agreement (Ims Health Inc)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ the ~~respective~~ Effective Time have been and will be rendered for the collective benefit of each of the members of ~~their respective~~ 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 ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product~~ purposes of asserting all privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could which may be asserted ~~by Vishay or any member of its Group~~ under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupapplicable Law. (b) ~~Upon receipt by Vishay~~ 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 ~~VPG, or any of the members of the respective Groups~~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 ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information 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 ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its or any member of its Group’s current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 ~~4.6~~ 10.05 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of IDT and ~~VPG’s respective agreements,~~ CTM as set forth in Section ~~4.5~~ 10.04 and this Section ~~4.6~~10.05, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps~~ assert and maintain all applicable privileges. Nothing provided for herein ~~for the preservation of all Privileges that may belong to~~ or in any Ancillary Agreement shall be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 3 contracts

Samples: 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) ~~Vishay~~ The Parties recognize that legal and ~~VPG~~ 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 Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services shall be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that relates: (A) solely to the Parent Business or to any member of the Parent Group and not to the SpinCo Business or to a member of the SpinCo Group; (B) solely to any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future; (C) to any individual who served as a director or officer of Parent or any of its Subsidiaries prior to the Effective Time, other than any individual who was also a director, employee or officer of a member of the SpinCo Group except to the extent such Privileged Information relates solely to such individual’s role as a director or officer of Parent or any of its Subsidiaries; (D) to any communications between internal or outside counsel, on the one hand, and, on the other hand, Parent, any director, employee or officer of Parent, or any member of the Parent Group in connection with this Agreement, any of the Ancillary Agreements, the Separation and Distribution, the Internal Reorganization or any matters relating to such agreements, the Separation or Distribution or the Internal Reorganization, including in connection with a Dispute between a member of the Parent Group and a member of the SpinCo Group; or (E) solely to the Actions and other matters set forth in Schedule 6.9(b)(i); in each case, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. (ii) SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information (other than the Privileged Information relating solely to the Actions and other matters set forth on Schedule 6.9(b)(i)) that relates: (A) solely to the SpinCo Business or to a member of the SpinCo Group and not to the Parent Business or a member of the Parent Group; (B) solely to any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future; or (C) to any individual who serves as a director or officer of SpinCo prior to the Effective Time, other than any individual who was also a director, employee or officer of a member of the Parent Group except to the extent such Privileged Information relates solely to such individual’s role as a director or officer of SpinCo; in each case, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.9, the Parties agree that ~~their respective rights and obligations~~ they shall have a shared privilege or immunity with respect to ~~maintain, preserve, assert or waive any or~~ all privileges ~~belonging~~ and immunities not allocated pursuant to ~~either party~~ Section 6.9(b) and all privileges and immunities relating to any Actions or ~~the respective~~ other matters that involve both Parties (or one or more members of their respective ~~Group with~~ Groups) and in respect to of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the ~~Vishay Business or~~ consent of the ~~MGF Business, including but not limited to~~ other Party. (d) If any dispute arises between the ~~attorney-client, work product privileges~~ Parties or any ~~other applicable privileges (individually, a “Privilege”), shall be governed by the provisions~~ members of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups ~~would~~ regarding whether a privilege or immunity should be ~~entitled~~ waived to ~~assert~~ protect or ~~have asserted a Privilege without regard to~~ advance the ~~effect, if any,~~ interests of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG either Party or any member of its Group, 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 (xiii) ~~all communications subject~~ not unreasonably withhold, condition or delay consent to any request for waiver by the other Party. In addition, each Party specifically agrees that it shall not withhold its consent to the waiver of a ~~Privilege~~ privilege or immunity for any purpose except to protect its own legitimate interests. (e) In the event of any adversarial Action between ~~counsel for Vishay (including~~ Parent and SpinCo, or any ~~Person who~~members of their respective Groups, at either Party may waive a privilege in which the ~~time~~ other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.9(c); provided that such waiver of a shared privilege shall be effective only as to the use of Privileged Information with respect to the Action between the Parties or the applicable members of their respective Groups, and shall not operate as a waiver of the ~~communication~~shared privilege with respect to any Third Party. (f) Upon receipt by either Party, ~~was an employee of Vishay~~ or ~~its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or~~ by any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any of the members of the respective Groups, as the case may be, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 ten (10) Business Days before production is required to occur, to the extent practicable) and shall provide the other Party a reasonable opportunity to review the Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.9 or otherwise to prevent the production or disclosure of such Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (cg) ~~Vishay’s~~ Any furnishing of, or access or transfer ~~of books and records pertaining~~ of, any Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Parent and ~~VPG’s respective agreements, as~~ SpinCo set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 6.9 and in Section 6.10 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The Parties agree that (i) their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to~~ between the ~~MGF Business or the Vishay Business~~ Parties and members of their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege or immunity that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing~~ , and (ii) in the event of any exchange by one Party to the other Party of any Privileged Information that should not have been transferred pursuant to the terms of this ~~Agreement~~ Article VI, the Party receiving such Privileged Information shall ~~operate~~ promptly return such Privileged Information to ~~reduce, minimize~~ and at the request of the Party that has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in,~~ immunity. (h) In connection with any matter contemplated by Section 6.8 or ~~the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~6.9, the Parties agree to, and to cause the applicable members of their Group to, use reasonable efforts to maintain their respective separate and joint privileges and immunities, including by executing joint defense or common interest agreements to implement or supersede the provisions of Section 6.8 or this Section 6.9 where necessary or useful for this purpose.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Sylvamo Corp), Separation and Distribution Agreement (International Paper Co /New/), Separation and Distribution Agreement (Sylvamo Corp)

Privileged Matters. (a) ~~Vishay~~ Each of the Potlatch Group and ~~VPG agree that their respective rights and obligations~~ the Clearwater Group agrees to maintain, ~~preserve~~preserve and assert all privileges, ~~assert~~ including, without limitation, privileges arising under or ~~waive any or all privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited~~ relating to the attorney-~~client,~~ client relationship (which shall include the attorney-client and work product ~~privileges~~ privileges), not heretofore waived, that relate to the Pulp-Based Business, the Pulp-Based Business Liabilities, the Retained Business or the Retained Business Liabilities for any ~~other applicable privileges~~ period prior to the Distribution Date (~~individually, a~~ “Privilege”), . Each Party agrees that it shall ~~be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or~~ not waive any ~~or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action)~~ Privilege that could be asserted under applicable Law without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the ~~prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement~~other Party. The rights and obligations created by this Section ~~4.6~~ 12.8 shall apply to all ~~Information~~ information relating to the Pulp-Based Business, the Pulp-Based Business Liabilities, the Retained Business or the Retained Business Liabilities as to which, but for the Distribution, either Party would have been entitled to assert or did assert the protection of a Privilege (“Privileged Information”~~) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect~~), ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to~~ including (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Distribution Date but which, ~~whether or not such Information (other than VPG Information)~~ after the Distribution, is in the possession of ~~VPG or any member of its Group~~either Party; and (xii) all ~~communications subject to a Privilege between counsel for Vishay (including any Person who~~information generated, ~~at the time of the communication, was an employee of Vishay~~ received or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring arising after the Distribution ~~between counsel for~~ Date that refers to or relates to Privileged Information generated, received or arising prior to the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupDistribution Date. (b) Upon receipt by ~~Vishay or VPG, or any of the members of the respective Groups, as the case may be,~~ either Party of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged Information ~~of the other~~ or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any current or former employee of ~~Vishay~~ a member of the Potlatch Group or ~~VPG, as~~ the ~~case may be, receives~~ Clearwater Group has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall notify 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 may have under this Section ~~4.6~~ 12.8 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Each Party agrees that it will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any ~~third party any of the other’s Privileged Information~~ information that may be covered by a Privilege under this Section ~~4.6~~ 12.8 unless (i) the ~~non-disclosing party~~ other Party has provided its ~~express~~ written consent to such production or disclosure (which consent shall not be unreasonably withheld), or (ii) a court of competent jurisdiction has entered an a final, nonappealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable ~~privilege, doctrine or rule, in which case, such Information~~ Privilege. Any costs associated with asserting any Privilege shall be ~~subject to Section 4.5~~borne by the Party requesting that such Privilege be asserted. (c) ~~Vishay~~Each Party’s transfer of books and records ~~pertaining~~ and other information to the ~~MGF Business~~ other Party, and ~~other Information to VPG, Vishay~~each Party’s agreement to permit ~~VPG~~ the other Party to ~~obtain~~ possess Privileged Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing or generated prior to the Distribution Date, are made in reliance on ~~Vishay~~each Party’s ~~and VPG’s respective agreements~~agreement, as set forth in Section ~~4.5~~ 12.7 and ~~this~~ Section ~~4.6~~12.8, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to ~~Sections 4.3~~ Section 12.1, the agreement to provide witnesses and ~~4.4~~ individuals pursuant to Section 12.6 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to the MGF Business or the Vishay Business~~ pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 12.8 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay and VPG~~ each Party in, or the obligations imposed upon ~~Vishay and VPG~~ each Party by, this Section ~~4.6~~12.8.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Potlatch Corp), Separation and Distribution Agreement (Potlatch Forest Products CORP), Separation and Distribution Agreement (Potlatch Forest Products CORP)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges~~ Distribution (~~individually, a “Privilege”), shall be governed~~ whether by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house outside counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel or other legal professionals) have been and ~~former in-house counsel who are employees~~ will be rendered for the collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Honeywell Group and the SpinCo Group, and that each of the members of the Honeywell Group and the SpinCo Group shall be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Distribution, which services will be rendered solely for the benefit of the Honeywell Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) Honeywell shall 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 Honeywell Business and not to the SpinCo Business, whether or not the privileged Information is in the possession or under the control of any member of the Honeywell Group or any member of the SpinCo Group. Honeywell shall also 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 any Honeywell Assets or Honeywell Liabilities and not any SpinCo Assets or SpinCo Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Honeywell Group or any member of the SpinCo Group; and (ii) SpinCo shall 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 SpinCo Business and not to the Honeywell Business, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Honeywell Group. SpinCo shall also 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 any SpinCo Assets or SpinCo Liabilities and not any Honeywell Assets or Honeywell Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any 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) Subject to the remaining provisions of this Section 7.08, the Parties agree that Honeywell shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities not allocated pursuant to Section 7.08(b) in connection with any Actions or threatened or contemplated Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this 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 mutually acceptable common interest agreement so as to maintain to the extent practicable any applicable attorney-client privilege or work product immunity of any member of either Group. (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 or any member of their respective Groups, 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 the members of its Group and (iii) not unreasonably withhold, delay or condition consent to any request for waiver by the other Party. (e) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 7.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged~~ such privileged Information~~. Vishay~~ ; provided that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this Section ~~4.6 unless (i)~~ 7.08 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (cf) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 3 contracts

Samples: 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) ~~Vishay~~ Solely for purposes of asserting privileges which may be asserted under applicable Law, and ~~VPG~~ 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 Distribution (whether by outside counsel, in-house counsel, other legal professionals, or other professionals acting at the direction of counsel) 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 Parent Group and the SpinCo Group shall be deemed to have been the client in connection with such services with respect to periods prior to the Distribution. The Parties recognize that legal and other professional services will be provided following the Distribution, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. (b) Parent shall 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 Parent Business or the Distribution and not to the SpinCo Business, whether or not the privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Assets or Parent Liabilities, and not any SpinCo Assets or SpinCo Liabilities, in connection with any Actions or Internal Investigations that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. For the avoidance of doubt, Information shall not be deemed to relate to the Parent Business solely by virtue of the fact that personnel associated with the corporate function of Parent were involved in the production or evaluation of such Information or otherwise involved in the Actions or Internal Investigations relating to such Information. (c) SpinCo shall 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 SpinCo Business and not to the Parent Business or the Distribution, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Assets or SpinCo Liabilities and not any Parent Assets or Parent Liabilities in connection with any Actions or Internal Investigations that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. For the avoidance of doubt, Information shall not be deemed to relate to the SpinCo Business solely by virtue of the fact that SpinCo personnel were involved in the production or evaluation of such Information or otherwise involved in the Actions or Internal Investigations relating to such Information. (d) Subject to the remaining provisions of this Section 7.08, the Parties agree that ~~their respective rights and obligations~~ Parent shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging~~ and immunities in connection with privileged Information not otherwise allocated pursuant to ~~either party~~ this Section 7.08 in connection with any Actions or ~~the respective~~ Internal Investigations, or threatened or contemplated Actions or Internal Investigations, or other matters that involve both Parties (or one or more members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)Groups), whether or not such privileged Information ~~(other than VPG Information)~~ is in the possession or under the control of ~~VPG~~ a member of the SpinCo Group or a member of the Parent Group. (e) To the extent that an issue regarding a privilege controlled by one Party under this Section 7.08 arises in connection with an Action or Internal Investigation the defense, prosecution or conduct (as applicable) of which the other Party is entitled to direct pursuant to Section 6.11, the Party entitled to control such privilege shall cooperate in good faith with the Party directing such Action or Internal Investigation in order to facilitate the efficient administration of such Action or Internal Investigation. 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 or any member of ~~its Group;~~ their respective Groups, each Party agrees that it shall: (i) negotiate with the other Party in good faith and (xii) ~~all communications subject~~ endeavor to ~~a Privilege between counsel for Vishay (including~~ minimize any ~~Person who, at~~ prejudice to the ~~time~~ rights of the ~~communication, was an employee of Vishay or its Group in~~ other Party and the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member members of its Group. (bf) Upon receipt by ~~Vishay or VPG~~either Party, or by any member of ~~the members of the~~ its respective ~~Groups, as the case may be~~Group, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will receive or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will receive or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 7.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged~~ such privileged Information~~. Vishay~~ ; provided that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this Section ~~4.6 unless (i)~~ 7.08 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (cg) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (General Electric Co), Separation and Distribution Agreement (GE Healthcare Holding LLC), Separation and Distribution Agreement (GE Healthcare Holding LLC)

Privileged Matters. (a) ~~Vishay~~ Each of TXI and ~~VPG agree that their respective rights and obligations~~ Chaparral agrees to maintain, ~~preserve~~preserve and assert all privileges, ~~assert~~ including, without limitation, privileges arising under or ~~waive any or all privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited~~ relating to the attorney-~~client,~~ client relationship (which shall include without limitation the attorney-client and work product ~~privileges or~~ privileges), not heretofore waived, that relate to the Chaparral Business, the Retained Business, the Assumed Liabilities, the Retained Liabilities, the Transferred Assets and the Retained Assets for any ~~other applicable privileges~~ period prior to the Distribution Date (~~individually, a~~ “Privilege” or “Privileges”), . Each Party acknowledges and agrees that any costs associated with asserting any Privilege shall be ~~governed~~ borne by the ~~provisions of this Section 4.6~~Party requesting that such privilege be asserted. ~~With respect to Privileged Information of Vishay, Vishay~~ Each Party agrees that it shall ~~have sole authority in perpetuity to determine whether to assert or~~ not waive any ~~or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action)~~ Privilege that could be asserted under applicable law without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the ~~prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement~~other Party. The rights and obligations created by this Section ~~4.6~~ 12.8 shall apply to all ~~Information~~ information as to which, but for the Distribution, either Party would have been entitled to assert or did assert the protection of a Privilege (“Privileged Information”~~) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege~~ ), including without ~~regard to the effect~~limitation, ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to~~ (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Distribution Date but which, ~~whether or not such Information (other than VPG Information)~~ after the Distribution, is in the possession of ~~VPG or any member of its Group~~either Party; and (xii) all ~~communications subject to a Privilege between counsel for Vishay (including any Person who~~information generated, ~~at the time of the communication, was an employee of Vishay~~ received or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring arising after the Distribution ~~between counsel for~~ Date that refers to or relates to Privileged Information generated, received or arising prior to the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupDistribution Date. (b) Upon receipt by ~~Vishay or VPG, or any of the members of the respective Groups, as the case may be,~~ either Party of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged Information ~~of the other~~ or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any current or former employee of ~~Vishay~~ a TXI Party or ~~VPG, as the case may be, receives~~ a Chaparral Party has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall notify 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 may have under this Section ~~4.6~~ 12.8 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Each Party agrees that it will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any ~~third party any of the other’s Privileged Information~~ information that may be covered by a Privilege under this Section ~~4.6~~ 12.8 unless (i) the ~~non-disclosing party~~ other Party has provided its ~~express~~ written consent to such production or disclosure (which consent shall not be unreasonably withheld), or (ii) a court of competent jurisdiction has entered an a final, nonappealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable ~~privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~Privilege. (c) ~~Vishay~~TXI’s transfer of books and records ~~pertaining to the MGF Business~~ and other ~~Information~~ information to ~~VPG~~Chaparral, ~~Vishay~~and TXI’s agreement to permit ~~VPG~~ Chaparral to ~~obtain~~ possess Privileged Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing or generated prior to the Distribution Date, are made in reliance on ~~Vishay~~Chaparral’s ~~and VPG’s respective agreements~~agreement, as set forth in ~~Section 4.5~~ Sections 12.7 and ~~this Section 4.6~~12.8, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to ~~Sections 4.3~~ Section 12.1, the agreement to provide witnesses and ~~4.4~~ individuals pursuant to Section 12.6 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating~~ to ~~the MGF Business or the Vishay Business~~ Chaparral pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 12.8 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay and VPG~~ TXI in, or the obligations imposed upon ~~Vishay and VPG~~ Chaparral by, this Section ~~4.6~~12.8.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Chaparral Steel CO), Separation and Distribution Agreement (Chaparral Steel CO), Separation and Distribution Agreement (Chaparral Steel CO)

Privileged Matters. (a) ~~Vishay~~ Each of First Data and ~~VPG agree that their respective rights and obligations~~ Western Union agrees to maintain, ~~preserve,~~ preserve and assert ~~or waive any or~~ all ~~privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business~~privileges, including ~~but not limited~~ privileges arising under or relating to the attorney-~~client,~~ client relationship (which shall include the attorney-client and work product ~~privileges~~ privileges), not heretofore waived, that relate to the Western Union Business or the First Data Business for any ~~other applicable privileges~~ period prior to the Distribution Date (~~individually,~~ each a “Privilege”), . Each Party hereto acknowledges and agrees that any costs associated with asserting any Privilege shall be ~~governed~~ borne by the ~~provisions of this Section 4.6~~Party requesting that such Privilege be asserted. ~~With respect to Privileged Information of Vishay, Vishay~~ Each Party agrees that it shall ~~have sole authority in perpetuity to determine whether to assert or~~ not waive any ~~or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action)~~ Privilege that could be asserted under applicable law without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the ~~prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement~~other Party. The rights and obligations created by this Section ~~4.6~~ 14.9 shall apply to all ~~Information~~ information relating to the First Data Business or the Western Union Business as to which, but for the Distribution, either Party would have been entitled to assert or did assert the protection of a Privilege (“Privileged Information”~~) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect~~), ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to~~ including (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Distribution Date but which, ~~whether or not such Information (other than VPG Information)~~ after the Distribution, is in the possession of ~~VPG or any member of its Group;~~ either Party and (xii) all ~~communications subject to a Privilege between counsel for Vishay (including any Person who~~information generated, ~~at the time of the communication, was an employee of Vishay~~ received or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring arising after the Distribution ~~between counsel for~~ Date that refers to or relates to Privileged Information generated, received or arising prior to the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupDistribution Date. (b) Upon receipt by ~~Vishay or VPG, or any of the members of the respective Groups, as the case may be,~~ either Party of any subpoena, discovery or other request ~~from~~ that may call for the production or disclosure of Privileged Information or if either Party obtains knowledge that any ~~third party~~ current or former employee of First Data or Western Union has received any subpoena, discovery or other request that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged Information of the other ~~or if Vishay or VPG~~Party, or any of members of their respective Groups, as the case may be, obtains knowledge that any current or former employee of Vishay or VPG, as the case may be, receives any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other, Vishay or VPG, as the case may be, such Party shall notify 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 may have under this Section ~~4.6~~ 14.9 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Each Party agrees that it will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any ~~third party any~~ information that may be covered by a Privilege of the ~~other’s Privileged Information~~ Party under this Section ~~4.6~~ 14.9 unless (i) the ~~non-disclosing party~~ other Party has provided its ~~express~~ written consent to such production or disclosure (which consent shall not be unreasonably withheld) or (ii) a court of competent jurisdiction has entered an a final, nonappealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable ~~privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~Privilege. (c) ~~Vishay~~First Data’s transfer of books and records ~~pertaining to the MGF Business~~ and other ~~Information~~ information to ~~VPG~~Western Union, ~~Vishay~~and First Data’s agreement to permit ~~VPG~~ Western Union to ~~obtain~~ possess Privileged Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing or generated prior to the Distribution Date, are made in reliance on ~~Vishay~~Western Union’s ~~and VPG’s respective agreements~~agreement, as set forth in ~~Section 4.5~~ Sections 14.8 and ~~this Section 4.6~~14.9, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to ~~Sections 4.3~~ Section 14.1, the agreement to provide witnesses and ~~4.4~~ individuals pursuant to Section 14.6 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating~~ to ~~the MGF Business or the Vishay Business~~ Western Union pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 14.9 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay and VPG~~ First Data in, or the obligations imposed upon ~~Vishay and VPG~~ Western Union by, this Section ~~4.6~~14.9. Western Union’s transfer of books and records and other information to First Data, and Western Union’s agreement to permit First Data to possess Privileged Information existing or generated prior to the Distribution Date, are made in reliance on First Data’s agreement, as set forth in Sections 14.8 and 14.9, to maintain the confidentiality of Privileged Information and to assert and maintain all applicable Privileges. The access to information being granted pursuant to Section 14.1, the agreement to provide witnesses and individuals pursuant to Section 14.6 and the transfer of Privileged Information to First Data pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Section 14.9 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Western Union in, or the obligations imposed upon First Data by, this Section 14.9.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Western Union CO), Separation and Distribution Agreement (Western Union CO), Separation and Distribution Agreement (Western Union CO)

Privileged Matters. (a) ~~Vishay~~ The parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ the ~~respective~~ Effective Time have been and will be rendered for the collective benefit of each of the members of ~~their respective~~ the Penn Group and the GLPI Group, and that each of the members of the Penn Group and the GLPI Group should be deemed to be the client with respect to such services for the ~~Vishay~~ purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. (b) The parties agree as follows: (i) Penn shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the Penn Business or and not to the ~~MGF~~ GLPI Business, ~~including but~~ whether or not ~~limited~~ the privileged Information is in the possession or under the control of any member of the Penn Group or any member of the GLPI Group. Penn shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Penn Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Penn Group or any member of the GLPI Group; and (ii) GLPI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the ~~attorney-client~~GLPI Business and not to the Penn Business, ~~work product privileges~~ whether or not the privileged Information is in the possession or under the control of any member of the GLPI Group or any ~~other applicable~~ member of the Penn Group. GLPI shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any GLPI Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the GLPI Group or any member of the Penn Group. (~~individually, a “Privilege”), shall be governed by~~ c) Subject to the ~~provisions of~~ restrictions set forth in this Section ~~4.6. With respect to Privileged Information of Vishay~~4.8, ~~Vishay~~ the parties agree that they shall have ~~sole authority in perpetuity to determine whether~~ a shared privilege, each with equal right to assert or waive any such shared privilege, with respect to all privileges not allocated pursuant to Section 4.8(b) and all privileges relating to any Actions or ~~all Privileges~~other matters that involve both the Penn Group and the GLPI Group and in respect of which both parties have Liabilities under this Agreement, and ~~VPG shall take~~ that no ~~action (nor permit any member of its Group to take action)~~ such shared privilege or immunity may be waived by either party without the ~~prior written~~ consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupparty. (bd) ~~Upon receipt by Vishay or VPG~~In the event of any Actions between Penn and GLPI, or any of the members of the respective Groups, as the case may be, of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other or if Vishay or VPG, or any of members of their respective Groups, ~~as the case~~ either party may be, obtains knowledge that any current or former employee of Vishay or VPG, as the case may be, receives any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other, Vishay or VPG, as the case may be, shall promptly notify waive a privilege in which the other party or member of such other party’s Group has a shared privilege, without obtaining consent pursuant to Section 4.8(c); provided, that such waiver of a shared privilege shall be effective only as to the ~~existence~~ use of Information with respect to the ~~request and shall provide~~ Action between the ~~other a reasonable opportunity to review~~ parties and/or the Information and to assert any rights it may have under this Section 4.6 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the applicable members of their respective ~~Groups to not~~Groups, ~~produce or disclose~~ and shall not operate as a waiver of the shared privilege with respect to any third Person. (e) If any dispute arises between Penn and GLPI, or any members of their respective Groups, regarding whether a privilege should be waived to protect or advance the interests of either the Penn Group or the GLPI Group, 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’s Privileged Information~~ other party and (iii) not unreasonably withhold, condition or delay consent to any request for waiver by the other party. Further, each party specifically agrees that it will not withhold its consent to the waiver of a privilege for any purpose except to protect its own legitimate interests. (f) In furtherance of the parties’ agreement under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege4.8, ~~doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books~~ Penn and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if anyGLPI shall, and ~~other Information to Vishay~~ shall cause applicable members of their respective Group to, maintain their respective separate and ~~VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s~~ joint privileges, including by executing joint defense and ~~VPG’s respective agreements, as set forth in Section 4.5 and~~ common interest agreements where necessary or useful for this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this Agreement in connection with the Separation and Distribution shall not be asserted by Vishay or VPG to constitute, or otherwise deemed, a waiver of any Privilege that has been or may be asserted under this Section 4.6 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6purpose.

Appears in 3 contracts

Samples: Separation and Distribution Agreement (Gaming & Leisure Properties, Inc.), Separation and Distribution Agreement (Gaming & Leisure Properties, Inc.), Separation and Distribution Agreement (Gaming & Leisure Properties, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Distribution Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Cousins Group and the New Parkway Group, and that each of the members of the Cousins Group and the New Parkway Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Distribution Effective Time, which services will be rendered solely for the benefit of the Cousins Group or the New Parkway Group, as the case may be. (b) The Parties agree as follows: (i) Cousins shall 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 Cousins Business and not to the New Parkway Business, whether or not the Privileged Information is in the possession or under the control of any member of the Cousins Group or any member of the New Parkway Group. Cousins shall also 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 any Cousins Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Cousins Group or any member of the New Parkway Group; (ii) New Parkway shall 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 New Parkway Business and not to the Cousins Business, whether or not the Privileged Information is in the possession or under the control of any member of the New Parkway Group or any member of the Cousins Group. New Parkway shall also 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 any New Parkway Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the New Parkway Group or any member of the Cousins 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 Cousins Business, solely to the New Parkway Business, or to both the Cousins Business and the New Parkway Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party 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, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or Dispute between Cousins and New Parkway, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that such waiver of a shared privilege shall be effective only as to the use of Information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information~~. Vishay or VPG, as~~ . (g) In the ~~case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to~~ event either Party inadvertently discloses any ~~third party any of the other’s~~ Privileged Information ~~under this Section 4.6 unless~~ or inadvertently waives any privilege or immunity as to which the other Party has any interest, that Party shall immediately (i) advise the ~~non-disclosing party has provided its express written consent to such production or~~ other Party of the inadvertent disclosure or waiver and (ii) ~~a court of competent jurisdiction has entered an order not subject~~ take all reasonably available steps to ~~interlocutory appeal~~ claw back any waived or ~~review (~~disclosed Information and restore the privilege or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5immunity. (ch) ~~Vishay’s~~ Any furnishing of, or access or transfer ~~of books and records pertaining~~ of, any Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Cousins and ~~VPG’s respective agreements, as~~ New Parkway set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 6.8 and in Section 6.9 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The Parties agree that their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to~~ between the ~~MGF Business or the Vishay Business~~ Parties and members of their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (i) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 3 contracts

Samples: Separation, Distribution and Transition Services Agreement (Parkway, Inc.), Separation, Distribution and Transition Services Agreement (Cousins Properties Inc), Separation, Distribution and Transition Services Agreement (Parkway, Inc.)

Privileged Matters. ~~(a) Vishay and VPG~~ The Parties agree that their respective rights and obligations to maintain, preserve, assert or waive any or all privileges belonging to ~~either party~~ each such Party or ~~the respective members of their respective Group with respect to the Vishay Business~~ its subsidiaries or ~~the MGF Business,~~ VIE(s) including but not limited to the attorney-~~client,~~ client and work product privileges ~~or any other applicable privileges~~ (~~individually~~collectively, a “~~Privilege~~Privileges”), shall be governed by the provisions of this Section ~~4.6~~4.7. With respect to Privileged Information (as defined below) of ~~Vishay~~SINA, ~~Vishay~~ SINA shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and ~~VPG~~ Weibo shall take no action (nor permit any ~~member~~ of its ~~Group~~ subsidiaries or VIE(s) to take action) without the prior written consent of ~~Vishay~~ SINA that could result in any waiver of any Privilege that could be asserted by ~~Vishay~~ SINA or any ~~member~~ of its ~~Group~~ subsidiaries or VIEs under ~~Applicable Law~~ applicable law and this Agreement. With respect to Privileged Information of ~~VPG~~Weibo, ~~VPG~~ Weibo shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and ~~Vishay~~ SINA shall take no action (nor permit any ~~member~~ of its ~~Group~~ subsidiaries or VIEs to take action) without the prior written consent of ~~VPG~~ Weibo that could result in any waiver of any Privilege that could be asserted by ~~VPG~~ Weibo or any ~~member~~ of its ~~Group~~ subsidiaries or VIE under ~~Applicable Law~~ applicable law and this Agreement. . (a) The rights and obligations created by this Section ~~4.6~~ 4.7 shall apply to all Information ~~(“Privileged Information”)~~ as to which ~~Vishay or VPG~~ the Parties or their respective ~~Groups~~ subsidiaries or VIE(s) would be entitled to assert or ~~have~~ has asserted a Privilege ~~without regard to the effect, if any, of the Separation and the Distribution~~(“Privileged Information”). Privileged Information of ~~Vishay and its Group~~ SINA includes but is not limited to (wi) any and all Information ~~satisfying the criteria of the preceding sentence~~ regarding the ~~Vishay Business~~ business of SINA and its ~~Group~~ subsidiaries and VIEs (other than Information ~~satisfying~~ regarding the ~~criteria of the preceding sentence relating to the MGF Business (“VPG Information”)~~Weibo Business), whether or not ~~such Information (other than VPG Information)~~ it is in the possession of ~~VPG~~ Weibo or any ~~member~~ of its ~~Group~~subsidiaries and VIE; ~~and~~ (xii) all communications subject to a Privilege between counsel for ~~Vishay~~ SINA (including in-house counsel) and any ~~Person~~ individual who, at the time of the communication, was an employee of ~~Vishay or its Group in the capacity of in-house counsel~~SINA, regardless of whether such employee is or becomes an employee of ~~VPG~~ Weibo or any ~~member~~ of its ~~Group~~subsidiaries and VIE and (iii) ~~and any Person who~~all Information generated, at received or arising after the ~~time~~ Public Filing Date that refers or relates to Privileged Information of SINA generated, received or arising prior to the ~~communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group~~Public Filing Date. Privileged Information of ~~VPG and its Group~~ Weibo includes but is not limited to (x) any and all ~~VPG Information~~Information regarding the Weibo Business, whether or not it is in the possession of ~~Vishay~~ SINA or any ~~member~~ of its ~~Group~~subsidiaries and VIEs; ~~and~~ (y) all communications subject to a Privilege occurring after the ~~Distribution~~ Public Filing Date between counsel for ~~the MGF Business~~ Weibo (including in-house counsel and former in-house counsel who are or were employees of ~~Vishay~~SINA) and any ~~Person~~ person who, at the time of the communication, was an employee of ~~VPG~~Weibo, ~~any member of its Group or the MGF Business~~ regardless of whether such employee was, is or becomes an employee of ~~Vishay~~ SINA or any ~~member~~ of its ~~Group~~subsidiaries or VIEs and (z) all Information generated, received or arising after the Public Filing Date that refers or relates to Privileged Information of Weibo generated, received or arising prior to the Public Filing Date. (b) Upon receipt by ~~Vishay~~ a Party or ~~VPG,~~ its subsidiaries or ~~any of the members of the respective Groups, as the case may be,~~ VIE(s) of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other Party or its subsidiaries or VIE(s), or if ~~Vishay or VPG,~~ a Party or any of ~~members of their respective Groups, as the case may be,~~ its subsidiaries or VIE(s) obtains knowledge that any of its current or former ~~employee of Vishay or VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the ~~other~~other Party or its subsidiaries or VIE(s), ~~Vishay or VPG, as the case may be,~~ such Party shall promptly notify ~~the~~ that other Party of the existence of the request and shall provide ~~the~~ that other Party a reasonable opportunity to review the Information and to assert any rights it such other Party may have under this Section ~~4.6~~ 4.7 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay~~ SINA or ~~VPG~~its subsidiaries or VIEs, or Weibo or its subsidiaries and VIE, as the case may be, will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any third party any of the ~~other~~other Party’s Privileged Information under this Section ~~4.6~~ 4.7 unless (ia) ~~the non-disclosing party~~ such other Party has provided its express written consent to such production or disclosure or (iib) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review ~~(or for which the period for appeal or review has lapsed)~~ finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule~~, in which case, such Information shall be subject to Section 4.5~~. (c) ~~Vishay~~SINA’s transfer of books and records pertaining to the ~~MGF~~ Weibo Business and other Information pertaining to ~~VPG~~Weibo, ~~Vishay~~if any, SINA’s agreement to permit ~~VPG~~ Weibo to obtain Information existing prior to the ~~Distribution~~Public Filing Date, ~~VPG~~Weibo’s transfer of books and records and other Information pertaining to ~~the Vishay Business~~SINA, if any, and ~~other Information to Vishay and VPG~~Weibo’s agreement to permit ~~Vishay~~ SINA to obtain Information existing prior to the ~~Distribution~~ Public Filing Date are made in reliance on ~~Vishay~~SINA’s and ~~VPG~~Weibo’s respective agreements, as set forth in Section ~~4.5~~ 4.6 and this Section ~~4.6~~4.7, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by ~~Vishay~~ SINA, or ~~VPG~~Weibo, as the case may be. The access to Information, witnesses and individuals being granted pursuant to ~~Sections~~ Section 4.3 and ~~4.4~~ Section 4.5 and the disclosure to ~~VPG and Vishay~~ one Party of Privileged Information relating to the ~~MGF Business or the Vishay Business~~ other Party’s businesses pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be asserted by ~~Vishay~~ SINA or ~~VPG~~ Weibo to constitute, or otherwise be deemed, a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 4.7 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted ~~to Vishay and VPG in~~to, or the obligations imposed ~~upon Vishay~~ upon, SINA and ~~VPG by,~~ Weibo by this Section ~~4.6~~4.7.

Appears in 3 contracts

Samples: Master Transaction Agreement, Master Transaction Agreement (Sina Corp), Master Transaction Agreement (WEIBO Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.9, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.9(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement (“Shared Privileges”), and that no such Shared Privilege may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups regarding whether a Shared Privilege should be waived to protect or advance the interests of either Party or any member of their respective Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of such Shared Privilege for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a Shared Privilege, without obtaining consent pursuant to Section 6.9(c); provided that the Parties intend such waiver of a Shared Privilege to be effective only as to the use of information with respect to the Action between the Parties or the applicable members of their respective Groups, and is not intended to operate as a waiver of the Shared Privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a Shared Privilege or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.9 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (cg) ~~Vishay’s~~ Any furnishing of, or access or transfer ~~of books and records pertaining~~ of, any Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Parent and ~~VPG’s respective agreements, as~~ SpinCo set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 6.9 and in Section 6.10 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The Parties agree that their respective rights to any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to~~ between the ~~MGF Business or the Vishay Business~~ Parties and members of their respective Groups as needed pursuant to this ~~Agreement in connection with the Separation and Distribution shall~~ Agreement, is not intended to be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.8 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~6.9, 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 or common interest agreements where necessary or useful for this purpose.

Appears in 3 contracts

Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Equitrans Midstream Corp), Separation and Distribution Agreement (EQT Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges~~ Effective Time (~~individually, a “Privilege”), shall be governed~~ whether by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house outside counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel or other legal professionals) have been and ~~former in-house counsel who are employees~~ will be rendered for the collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~SYNNEX Group and the Concentrix Group, and that each of the members of the SYNNEX Group and the Concentrix Group shall be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the SYNNEX Group or the Concentrix Group, as the case may be. (b) The Parties agree as follows: (i) SYNNEX shall 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 SYNNEX Business and not to the Concentrix Business, whether or not the Privileged Information is in the possession or under the control of any member of the SYNNEX Group or any member of the Concentrix Group. SYNNEX shall also 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 any SYNNEX Liabilities resulting from any other Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SYNNEX Group or any member of the Concentrix Group; and (ii) Concentrix shall 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 Concentrix Business and not to the SYNNEX Business, whether or not the Privileged Information is in the possession or under the control of any member of the Concentrix Group or any member of the SYNNEX Group. Concentrix shall also 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 any Concentrix Liabilities resulting from any other Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Concentrix Group or any member of the SYNNEX 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, 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 SYNNEX Business, solely to the Concentrix Business, or to both the SYNNEX Business and the Concentrix Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the written consent of the other Party. The Parties will enter into common interest or joint defense agreements as deemed necessary to preserve privilege, allow coordination of defenses, and avoid waivers of privilege in connection with any Privileged Information that relates to Shared Contingent Liabilities, whether or not the Privileged Information is in the possession or under the control of any member of the Concentrix Group or any member of the SYNNEX Group. (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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) Subject to Section 6.9, in the event of any adversarial Action or Dispute between SYNNEX and Concentrix, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided, that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action or Dispute between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such 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 6.8 or otherwise, to prevent the production or disclosure of such Privileged 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. (h) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of SYNNEX and Concentrix set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 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 such Privileged Information shall ~~operate~~ promptly return such Privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in,~~ immunity. (i) In connection with any matter contemplated by Section 6.7 or ~~the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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

Samples: Separation and Distribution Agreement (Concentrix Corp), Separation and Distribution Agreement (Concentrix Corp)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ shall be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”),~~ Separation Time have been and shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~HD Group and the LiveWire Group, and that each of the members of the HD Group and the LiveWire Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges and immunities that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided after the Separation Time, which services will be rendered solely for the benefit of the HD Group or the LiveWire Group, as the case may be. (b) The Parties agree as follows: (i) HD shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information, other than such Privileged Information that primarily relates to the LiveWire Business or LiveWire Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the HD Group or the LiveWire Group, and LiveWire Group agrees not to disclose any such Privileged Information to any Third Party; (ii) LiveWire shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any Privileged Information that primarily relates to the LiveWire Business or the LiveWire Liabilities, whether or not the Privileged Information is in the possession or under the control of a member of the HD Group or 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 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) [Reserved]. (d) Upon receipt by any member of the LiveWire Group of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ would reasonably be expected to result in the production or disclosure of ~~Privileged~~ Information ~~of the other~~ subject to a shared privilege or ~~if Vishay~~ immunity or ~~VPG,~~ as to which HD or any of ~~members of their respective Groups~~its Subsidiaries has the sole right hereunder to assert a privilege or immunity, ~~as the case may be,~~ or if LiveWire obtains knowledge that any of its, or any member of the LiveWire Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ would reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ LiveWire shall promptly ~~notify the other~~ 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~~ HD a reasonable opportunity to review the Information and to assert any rights it or they may ~~have~~ have, including under this Section ~~4.6~~ 3.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information~~. Vishay~~ . (e) Upon receipt by any member of the HD Group of any subpoena, discovery or ~~VPG~~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, ~~as the case may be, will not, and will cause the members of their respective Groups to not, produce~~ or ~~disclose to any third party~~ if HD obtains knowledge that any of its, or any member of the ~~other’s~~ 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 ~~4.6 unless (i)~~ 3.8 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~Privileged Information. (cf) ~~Vishay’s~~ Any furnishing of, or access to, Information pursuant to this Agreement and the transfer of ~~books~~ the Assets and ~~records pertaining to~~ retention of the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution LiveWire Assets by LiveWire are made and done in reliance on ~~Vishay’s and VPG’s respective agreements, as~~ the agreement of the Parties set forth in ~~Section 4.5 and~~ this Section ~~4.6,~~ 3.8 and in Section 3.9 to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges and immunities. The Parties agree that their respective rights to any access to ~~Information~~information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating to~~ between the ~~MGF Business or the Vishay Business~~ Parties and members of their respective Group pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return or transfer, as the case may be, such Privileged Information to ~~reduce~~the Party who has the right to assert the privilege or immunity. (g) In furtherance of, ~~minimize or condition~~ and without limitation to, the ~~rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ Parties’ agreement under this Section ~~4.6~~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

Samples: Separation Agreement (LiveWire Group, Inc.), Separation Agreement (Harley-Davidson, Inc.)

Privileged Matters. To allocate the interests of each Party with respect to privileged information, the Parties agree as follows: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ Myriad shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the ~~Vishay Business or the MGF~~ Myriad Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of Myriad or MPI. Myriad 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 ~~member~~ claims constituting Liabilities of ~~its~~ Myriad and the Myriad Group~~; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other Actions initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby Myriad, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group Myriad or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~MPI. (b) MPI shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged information which relates solely to the MPI Business, whether or not the privileged information is in the possession of or under the control of Myriad or MPI. MPI 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 MPI Liabilities, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by MPI, whether or not the privileged information is in the possession of MPI or under the control of Myriad or MPI. (c) Myriad and MPI agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions of this Section 8.5, with respect to all privileges not allocated pursuant to the terms of Sections 8.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes or other matters which involve both Myriad and MPI in respect of which Myriad and MPI retain any responsibility or liability under this Agreement shall be subject to a shared privilege. (d) No Party may waive any privilege which could be asserted under any applicable law, if the other Party has a shared privilege, without the consent of the other Party, except to the extent reasonably required in connection with any litigation with Third Parties or as provided in Section 8.5(e) below. 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. (e) In the event of any litigation or dispute between a member of the Myriad Group and a member of the MPI Group, either Party may waive a privilege in which the other Party 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 Myriad Group and the MPI Group, and shall not operate as a waiver of the shared privilege with respect to Third Parties. (f) If a dispute arises between the Parties 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 ~~Vishay or VPG, or~~ any ~~of the members of the respective Groups, as the case may be,~~ Party of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information 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 ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ Party obtains knowledge that any of its current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ 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 may have under this Section ~~4.6~~ 8.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining~~ all Information pursuant to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of Myriad and ~~VPG’s respective agreements~~MPI, as set forth in ~~Section 4.5~~ Sections 8.4 and 8.5 and elsewhere in this ~~Section 4.6~~Agreement, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~assert and maintain applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 8.1 and ~~4.4~~ 8.2, the agreement to provide witnesses and individuals pursuant to Section 8.3 and the ~~disclosure to VPG~~ transfer of privileged information between the Myriad Group and ~~Vishay of Privileged Information relating to~~ the ~~MGF Business or the Vishay Business~~ MPI Group pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 2 contracts

Samples: Separation and Distribution Agreement (Myriad Pharmaceuticals, Inc.), Separation and Distribution Agreement (Myriad Pharmaceuticals, Inc.)

Privileged Matters. The parties hereto recognize that legal and other professional services that have been and will be provided prior to the Distribution Date have been and will be rendered for the benefit of each of IMPCO, the members of the IMPCO Group and the members of the Quantum Group, and that each of IMPCO, the members of the IMPCO Group and the members of the Quantum Group should be deemed to be the client for the purposes of asserting all privileges which may be asserted under applicable law. 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: (a) ~~Vishay and VPG agree that their respective rights and obligations~~ IMPCO shall be entitled, in perpetuity, to ~~maintain, preserve, assert~~ control the assertion or ~~waive any or~~ waiver of all privileges ~~belonging to either party or the respective members of their respective Group~~ in connection with ~~respect~~ privileged information which relates solely to the ~~Vishay Business or the MGF~~ IMPCO Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not ~~such Information (other than VPG Information)~~ the privileged information is in the possession of ~~VPG~~ or under the control of IMPCO or Quantum. 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 ~~member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who~~claims constituting IMPCO Liabilities, ~~at the time of the communication, was an employee of Vishay~~ now pending or ~~its Group~~ which may be asserted in the ~~capacity of in-house counsel~~future, ~~regardless of whether such employee is~~ in any lawsuits or ~~becomes an employee of VPG~~ other proceedings initiated against or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Informationby IMPCO, whether or not it the privileged information is in the possession of ~~Vishay~~ or ~~any member~~ under the control of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group IMPCO or ~~the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group~~Quantum. (b) 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 Quantum Business, whether or not the privileged information is in the possession of or under the control of IMPCO or Quantum. Quantum 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 Quantum Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Quantum whether or not the privileged information is in the possession of or under the control of IMPCO or Quantum. (c) The parties hereto agree that they shall have a shared privilege, with equal right to assert or waive, subject to the restrictions in this Section 4.5, with respect to all privileges not allocated pursuant to the terms of Sections 4.5(a) and (b). All privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both IMPCO and Quantum 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 hereto may waive any privilege which could be asserted under any applicable law, and in which any other party hereto has a shared privilege, without the consent of the other party, 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 subsection (e) 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 requesting such consent. (e) In the event of any litigation or dispute between or among any of the parties hereto, any party and a Subsidiary of another party hereto, or a Subsidiary of one party hereto and a Subsidiary of another party hereto, either such party may waive a privilege in which the other party 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 parties and/or their Subsidiaries, 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 hereto or their respective Subsidiaries regarding whether a privilege should be waived to protect or advance the interest of any party, each party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other parties, and shall not unreasonably withhold consent to any request for waiver by another party. Each 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 ~~Vishay~~ any party hereto or ~~VPG, or~~ by any ~~of the members of the respective Groups, as the case may be,~~ Subsidiary thereof of any subpoena, discovery or other request ~~from any third party that actually or~~ which arguably calls for the production or disclosure of ~~Privileged Information of~~ information subject to a shared privilege or as to which another party has the ~~other~~ sole right hereunder to assert a privilege, or if ~~Vishay or VPG, or~~ any ~~of members of their respective Groups, as the case may be,~~ party obtains knowledge that any of its or any of its Subsidiaries' current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party that actually or~~ requests which arguably calls for the production or disclosure of ~~Privileged Information of the other~~such privileged information, ~~Vishay or VPG, as the case may be,~~ such party shall promptly notify the other party or parties of the existence of the request and shall provide the other party or parties a reasonable opportunity to review the ~~Information~~ information and to assert any rights it or they may have under this Section ~~4.6~~ 4.5 or otherwise to prevent the production or disclosure of Privileged Information. Vishay or VPG, as the case may be, will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5privileged information. (ch) ~~Vishay’s~~ The transfer of ~~books and records pertaining to the MGF Business~~ all Records and other ~~Information~~ information pursuant to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are this Agreement is made in reliance on ~~Vishay’s~~ the agreement of IMPCO and ~~VPG’s respective agreements~~Quantum, as set forth in ~~Section 4.5~~ Sections 4.4 and ~~this Section 4.6~~4.5, to maintain the confidentiality of ~~such Information~~ privileged information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to Sections ~~4.3~~ 4.1 and ~~4.4~~ 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 ~~disclosure to VPG~~ transfer of privileged information between and ~~Vishay of Privileged Information relating to~~ among the ~~MGF Business or the Vishay Business~~ parties and their respective Subsidiaries pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~.

Appears in 2 contracts

Samples: Contribution and Distribution Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Contribution and Distribution Agreement (Quantum Fuel Systems Technologies Worldwide Inc)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Ventas Group and the SpinCo Group, and that each of the members of the Ventas Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Ventas Group or the SpinCo Group, as the case may be. (b) The Parties agree as follows: (i) Ventas shall 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 Ventas Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Ventas Group or any member of the SpinCo Group. Ventas shall also 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 any Ventas Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Ventas Group or any member of the SpinCo Group; (ii) SpinCo shall 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 SpinCo Business and not to the Ventas Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Ventas Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any 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) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party 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, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own legitimate interests. (e) In the event of any adversarial Action or Dispute between Ventas and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged 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) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Ventas and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (i) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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

Samples: Separation and Distribution Agreement (Ventas Inc), Separation and Distribution Agreement (Care Capital Properties, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations~~ will be provided prior to ~~maintain, preserve, assert or waive any or all privileges belonging to either party or~~ the ~~respective~~ Effective Time have been and will be rendered for the collective benefit of each of the members of ~~their respective~~ the Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product~~ purposes of asserting all privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that ~~could result in any waiver of any Privilege that could~~ may be asserted ~~by Vishay or any member of its Group~~ under ~~Applicable~~ applicable Law ~~and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority~~ in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Groupconnection therewith. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 the time as the Parties resolve the dispute as to whether the information is Privileged Information pursuant to the procedures set forth in Article VII or 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party (not to be unreasonably withheld, conditioned or delayed). (d) If any Dispute arises between the Parties or any members of their respective Groups regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party or any member of their respective Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose except in good faith to protect its own or its Affiliates’ legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between the Parties or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by ~~Vishay or VPG~~either Party, or by any member of ~~the members of the~~ its respective ~~Groups, as the case may be~~Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall promptly notify the other Party of the existence of the request ~~and~~ (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, or if a response is due in less than five (5) business days, at least twenty-four (24) hours before the deadline for a response), shall provide the other Party a reasonable opportunity to review the Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement of Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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 mutually acceptable joint defense or common interest agreements where necessary or useful for this purpose.

Appears in 2 contracts

Samples: Separation and Distribution Agreement (Bluerock Homes Trust, Inc.), Separation and Distribution Agreement (Bluerock Homes Trust, Inc.)

Privileged Matters. (a) ~~Vishay~~ Solely for purposes of asserting privileges which may be asserted under applicable law, and ~~VPG~~ 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 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 Parent Group and the SpinCo Group shall be deemed to have been the client in connection with such services with respect to periods prior to the Distribution. The Parties recognize that legal and other professional services will be provided following the Distribution, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. (b) Parent shall 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 Parent Business or the Distribution and not to the operations of the SpinCo Business, whether or not the privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Assets or Parent Liabilities, and not any SpinCo Assets or SpinCo Liabilities, in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group; and (c) SpinCo shall 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 operations of the SpinCo Business and not to the Parent Business or the Distribution, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Assets or SpinCo Liabilities and not any Parent Assets or Parent Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. (d) Subject to the remaining provisions of this Section 7.08, the Parties agree that Parent shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities not allocated pursuant to Section 7.10 in connection with any Actions, or threatened or contemplated Actions, or other matters that involve both Parties (or one or more members of their respective ~~rights~~ Groups) and ~~obligations to maintain, preserve, assert~~ in respect of which both Parties have Liabilities under this Agreement. (e) If any dispute arises between the Parties or ~~waive~~ any ~~or all privileges belonging to either party or the respective~~ members of their respective Group ~~with respect~~ regarding whether a privilege or immunity should be waived to protect or advance the Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall be governed by the provisions interests of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay either Party or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective ~~Groups would be entitled~~ Groups, each Party agrees that it shall: (i) negotiate with the other Party in good faith; (ii) endeavor to ~~assert or have asserted a Privilege without regard~~ minimize any prejudice to the ~~effect, if any,~~ rights of the ~~Separation~~ other Party and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member members of its Group; and (xiii) ~~all communications subject~~ not unreasonably withhold, delay or condition consent to ~~a Privilege between counsel~~ any request for ~~Vishay~~ waiver by the other Party. (~~including any Person who~~f) Upon receipt by either Party, ~~at the time of the communication, was an employee of Vishay~~ or ~~its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or~~ by any member of its respective Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any of the members of the respective Groups, as the case may be, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will receive or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any member of ~~members of their~~ its respective ~~Groups~~Group’s, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will receive or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 7.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged Information. Vishay~~ such privileged Information; provided that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this Section ~~4.6 unless (i)~~ 7.08 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (cg) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement, and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 2 contracts

Samples: Separation and Distribution Agreement (Kyndryl Holdings, Inc.), Separation and Distribution Agreement (Kyndryl Holdings, LLC)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges~~ Closing (~~individually, a “Privilege”), shall be governed~~ whether by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house outside counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel for the MGF Business (including in-house counsel or other legal professionals) have been and ~~former in-house counsel who are employees~~ will be rendered for the collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Vista Outdoor Group and the Revelyst Group, and that each of the members of the Vista Outdoor Group and the Revelyst Group shall be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Closing, which services will be rendered solely for the benefit of the Vista Outdoor Group or the Revelyst Group, as the case may be. (b) The Parties agree as follows: (i) Vista Outdoor shall 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 Vista Outdoor Business and not to the Revelyst Business, whether or not the privileged Information is in the possession or under the control of any member of the Vista Outdoor Group or any member of the Revelyst Group. Vista Outdoor shall also 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 any Vista Outdoor Assets or Vista Outdoor Liabilities and not any Revelyst Assets or Revelyst Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Vista Outdoor Group or any member of the Revelyst Group; and (ii) Revelyst shall be entitled, in perpetuity, to control the assertion or waiver of all privileges and immunities in connection with any privileged Information that (x) relates solely to the Revelyst Business and not to the Vista Outdoor Business or (y) relates to any of the Transaction Documents, the Transactions or the Revelyst Transactions, in each case whether or not the privileged Information is in the possession or under the control of any member of the Revelyst Group or any member of the Vista Outdoor Group. Revelyst shall also 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 any Revelyst Assets or Revelyst Liabilities and not any Vista Outdoor Assets or Vista Outdoor Liabilities in connection with any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the Revelyst Group or any member of the Vista Outdoor Group. (c) Subject to the remaining provisions of this Section 6.08, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.08(b) in connection with any Actions or threatened or contemplated Actions or other matters that involve both Parties (or one or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement. Upon the reasonable request of Vista Outdoor or Revelyst, in connection with any Action or threatened or contemplated Action contemplated by this Article VI, other than any Adversarial Action or threatened or contemplated Adversarial Action, Vista Outdoor and Revelyst will enter into a mutually acceptable common interest agreement to maintain to the extent practicable any applicable attorney-client privilege, work product immunity or similar privilege or immunity of any member of either Group. 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 by a court of competent jurisdiction that such information is not privileged Information or unless the Parties otherwise agree. (d) If any dispute arises between the Parties or any members of their respective Groups regarding whether a privilege or immunity should be waived to protect or advance the interests of either Party or any member of their respective Groups, 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 the members of its Group and (iii) not unreasonably withhold, delay or condition consent to any request for waiver by the other Party. (e) Upon receipt by either Party, or by any member of its Group, of any subpoena, discovery or other request ~~from any third party~~ (or of written notice that ~~actually~~ it will receive or ~~arguably calls for~~ has received such subpoena, discovery or other request) that may reasonably be expected to result in the production or disclosure of ~~Privileged~~ privileged Information of subject to a shared privilege or immunity or as to which the other Party has the sole right hereunder to assert a privilege or immunity, or if ~~Vishay~~ either Party obtains knowledge or ~~VPG~~becomes aware that any of its, or any of ~~members of their respective Groups~~its Group’s members’, ~~as the case may be, obtains knowledge that any~~ current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees have received any subpoena, discovery or other ~~request from any third party~~ requests (or have received written notice that ~~actually~~ they will receive or ~~arguably calls for~~ have received such subpoena, discovery or other requests) that may reasonably be expected to result in the production or disclosure of ~~Privileged Information of the other~~such privileged Information, ~~Vishay or VPG, as the case may be,~~ 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 privileged Information and to assert any rights it or they may ~~have~~ have, under this Section ~~4.6~~ 6.08 or ~~otherwise~~ otherwise, to prevent the production or disclosure of ~~Privileged~~ such privileged Information~~. Vishay~~ ; provided that if such Party is prohibited by applicable Law from disclosing the existence of such subpoena, discovery or ~~VPG~~other request, as 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 ~~case may be~~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 have a reasonable opportunity to review the privileged Information and to assert its rights, ~~will not, and will cause the members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information~~ under this Section ~~4.6 unless (i)~~ 6.08 or otherwise, to prevent the ~~non-disclosing party has provided its express written consent to such~~ production or disclosure ~~or (ii) a court~~ of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such ~~Information shall be subject to Section 4.5~~privileged Information. (cf) ~~Vishay’s transfer of books and records pertaining~~ The Parties agree that their respective rights to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The any access to Information, witnesses and ~~individuals being granted pursuant to Sections 4.3~~ other Persons, the furnishing of notices and ~~4.4~~ documents and other cooperative efforts between the Parties contemplated by this Agreement and the ~~disclosure to VPG~~ transfer of privileged Information between the Parties and ~~Vishay~~ members of ~~Privileged Information relating to the MGF Business or the Vishay Business~~ their respective Groups pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege or immunity that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise. ~~Nothing in~~ The Parties further agree that (i) the exchange by one Party to the other Party of any Information that should not have been exchanged pursuant to the terms of Section 6.09 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 ~~operate~~ promptly return such privileged Information to ~~reduce, minimize~~ the Party who has the right to assert the privilege or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by, this Section 4.6~~immunity.

Appears in 2 contracts

Samples: Separation Agreement (Revelyst, Inc.), Separation Agreement (Vista Outdoor Inc.)

Privileged Matters. (a) ~~Vishay~~ Each of TSC and ~~VPG agree that their respective rights and obligations~~ eLoyalty agrees to maintain, ~~preserve~~preserve and assert all privileges, ~~assert~~ including, without limitation, privileges arising under or ~~waive any or all privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited~~ relating to the attorney-~~client,~~ client relationship (which shall include without limitation the attorney-client and work product ~~privileges or any other applicable privileges (individually, a “Privilege”~~privileges), not heretofore waived, that relate to the eLoyalty Business and the Transferred Assets for any period prior to the Distribution Date ("Privilege" or "Privileges"). Each Party agrees that it shall ~~be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or~~ not waive any ~~or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action)~~ Privilege that could be asserted under applicable law without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the ~~prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement~~other Party. The rights and obligations created by this Section ~~4.6~~ 14.8 shall apply to all ~~Information (“Privileged Information”)~~ information relating to the eLoyalty Business as to ~~which Vishay or VPG or their respective Groups~~ which, but for the Distribution, either Party would be have been entitled to assert or ~~have asserted~~ did assert the protection of a Privilege ("Privileged Information"), including without ~~regard to the effect~~limitation, ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to~~ (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Distribution Date but which, ~~whether or not such Information (other than VPG Information)~~ after the Distribution, is in the possession of ~~VPG or any member of its Group~~either Party; and (xii) all ~~communications subject to a Privilege between counsel for Vishay (including any Person who~~information generated, ~~at the time of the communication, was an employee of Vishay~~ received or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring arising after the Distribution ~~between counsel for~~ Date that refers to or relates to Privileged Information generated, received or arising prior to the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupDistribution Date. (b) Upon receipt by ~~Vishay or VPG, or any of the members of the respective Groups, as the case may be,~~ either Party of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged Information ~~of the other~~ or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any current or former employee of ~~Vishay~~ TSC or ~~VPG, as the case may be, receives~~ eLoyalty has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall notify 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 may have under this Section ~~4.6~~ 14.8 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Each Party agrees that it will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any ~~third party any of the other’s Privileged Information~~ information that may be covered by a Privilege under this Section ~~4.6~~ 14.8 unless (i) the ~~non-disclosing party~~ other Party has provided its ~~express~~ written consent to such production or disclosure (which consent shall not be unreasonably withheld), or (ii) a court of competent jurisdiction has entered an a final, nonappealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable ~~privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~Privilege. (c) ~~Vishay’s~~ TSC's transfer of books and records ~~pertaining to the MGF Business~~ and other ~~Information~~ information to ~~VPG~~eLoyalty, ~~Vishay’s~~ and TSC's agreement to permit ~~VPG~~ eLoyalty to ~~obtain~~ possess Privileged Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing or generated prior to the Distribution Date, are made in reliance on ~~Vishay’s and VPG’s respective agreements~~eLoyalty's agreement, as set forth in ~~Section 4.5~~ Sections 14.7 and ~~this Section 4.6~~14.8, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to ~~Sections 4.3~~ Section 14.1, the agreement to provide witnesses and ~~4.4~~ individuals pursuant to Section 14.6 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating~~ to ~~the MGF Business or the Vishay Business~~ eLoyalty pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 14.8 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay and VPG~~ TSC in, or the obligations imposed upon ~~Vishay and VPG~~ eLoyalty by, this Section ~~4.6~~14.8.

Appears in 2 contracts

Samples: Reorganization Agreement (Eloyalty Corp), Reorganization Agreement (Eloyalty Corp)

Privileged Matters. (a) ~~Vishay~~ Each of Dxxx and ~~VPG agree that their respective rights and obligations~~ TreeHouse agrees to maintain, ~~preserve~~preserve and assert all privileges, ~~assert~~ including, without limitation, privileges arising under or ~~waive any or all privileges belonging to either party or the respective members of their respective Group with respect to the Vishay Business or the MGF Business, including but not limited~~ relating to the attorney-~~client,~~ client relationship (which shall include without limitation the attorney-client and work product ~~privileges or~~ privileges), not heretofore waived, that relate to the Transferred Businesses and the Transferred Assets for any ~~other applicable privileges~~ period prior to the Distribution Date (~~individually, a~~ “Privilege” or “Privileges”), . Each Party acknowledges and agrees that any costs associated with asserting any Privilege shall be ~~governed~~ borne by the ~~provisions of this Section 4.6~~Party requesting that such privilege be asserted. ~~With respect to Privileged Information of Vishay, Vishay~~ Each Party agrees that it shall ~~have sole authority in perpetuity to determine whether to assert or~~ not waive any ~~or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action)~~ Privilege that could be asserted under applicable law without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the ~~prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement~~other Party. The rights and obligations created by this Section ~~4.6~~ 12.8 shall apply to all ~~Information~~ information relating to the Transferred Businesses as to which, but for the Distribution, either Party would have been entitled to assert or did assert the protection of a Privilege (“Privileged Information”~~) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege~~ ), including without ~~regard to the effect~~limitation, ~~if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to~~ (wi) any and all ~~Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating~~ information generated prior to the ~~MGF Business (“VPG Information”))~~Distribution Date but which, ~~whether or not such Information (other than VPG Information)~~ after the Distribution, is in the possession of ~~VPG or any member of its Group~~either Party; and (xii) all ~~communications subject to a Privilege between counsel for Vishay (including any Person who~~information generated, ~~at the time of the communication, was an employee of Vishay~~ received or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring arising after the Distribution ~~between counsel for~~ Date that refers to or relates to Privileged Information generated, received or arising prior to the MGF Business (including in-house counsel and former in-house counsel who are employees of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its GroupDistribution Date. (b) Upon receipt by ~~Vishay or VPG, or any of the members of the respective Groups, as the case may be,~~ either Party of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged Information ~~of the other~~ or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any current or former employee of ~~Vishay~~ Dxxx or ~~VPG, as the case may be, receives~~ TreeHouse has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls~~ may call for the production or disclosure of Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ such Party shall notify 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 may have under this Section ~~4.6~~ 12.8 or otherwise to prevent the production or disclosure of Privileged Information. ~~Vishay or VPG, as the case may be,~~ Each Party agrees that it will ~~not, and will cause the members of their respective Groups to not,~~ not produce or disclose to any ~~third party any of the other’s Privileged Information~~ information that may be covered by a Privilege under this Section ~~4.6~~ 12.8 unless (i) the ~~non-disclosing party~~ other Party has provided its ~~express~~ written consent to such production or disclosure (which consent shall not be unreasonably withheld), or (ii) a court of competent jurisdiction has entered an a final, nonappealable order ~~not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed)~~ finding that the ~~Information~~ information is not entitled to protection ~~from disclosure~~ under any applicable ~~privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5~~Privilege. (c) ~~Vishay’s~~ Dxxx’x transfer of books and records ~~pertaining to the MGF Business~~ and other ~~Information~~ information to ~~VPG~~TreeHouse, ~~Vishay’s~~ and Dxxx’x agreement to permit ~~VPG~~ TreeHouse to ~~obtain~~ possess Privileged Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing or generated prior to the Distribution Date, are made in reliance on ~~Vishay~~TreeHouse’s ~~and VPG’s respective agreements~~agreement, as set forth in ~~Section 4.5~~ Sections 12.7 and ~~this Section 4.6~~12.8, to maintain the confidentiality of ~~such~~ Privileged Information and to ~~take the steps provided herein for the preservation of~~ assert and maintain all ~~Privileges that may belong to or be asserted by Vishay or VPG, as the case may be~~applicable Privileges. The access to ~~Information, witnesses and individuals~~ information being granted pursuant to ~~Sections 4.3~~ Section 12.1, the agreement to provide witnesses and ~~4.4~~ individuals pursuant to Section 12.6 and the ~~disclosure to VPG and Vishay~~ transfer of Privileged Information ~~relating~~ to ~~the MGF Business or the Vishay Business~~ TreeHouse pursuant to this Agreement ~~in connection with the Separation and Distribution~~ shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any Privilege that has been or may be asserted under this Section ~~4.6~~ 12.8 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to ~~Vishay and VPG~~ Dxxx in, or the obligations imposed upon ~~Vishay and VPG~~ TreeHouse by, this Section ~~4.6~~12.8.

Appears in 2 contracts

Samples: Distribution Agreement (Dean Foods Co/), Distribution Agreement (TreeHouse Foods, Inc.)

Privileged Matters. (a) ~~Vishay~~ The Parties recognize that legal and ~~VPG agree~~ other professional services that ~~their respective rights~~ have been and ~~obligations to maintain, preserve, assert or waive any or all privileges belonging to either party or the respective members of their respective Group with respect~~ will be provided prior to the ~~Vishay Business or the MGF Business, including but not limited to the attorney-client, work product privileges or any other applicable privileges (individually, a “Privilege”), shall~~ Effective Time have been and will be governed by the provisions of this Section 4.6. With respect to Privileged Information of Vishay, Vishay shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and VPG shall take no action (nor permit any member of its Group to take action) without the prior written consent of Vishay that could result in any waiver of any Privilege that could be asserted by Vishay or any member of its Group under Applicable Law and this Agreement. With respect to Privileged Information of VPG, VPG shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Vishay shall take no action (nor permit any member of its Group to take action) without the prior written consent of VPG that could result in any waiver of any Privilege that could be asserted by VPG or any member of its Group under Applicable Law and this Agreement. The rights and obligations created by this Section 4.6 shall apply to all Information (“Privileged Information”) as to which Vishay or VPG or their respective Groups would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of the Separation and the Distribution. Privileged Information of Vishay and its Group includes but is not limited to (w) any and all Information satisfying the criteria of the preceding sentence regarding the Vishay Business and its Group (other than Information satisfying the criteria of the preceding sentence relating to the MGF Business (“VPG Information”)), whether or not such Information (other than VPG Information) is in the possession of VPG or any member of its Group; and (x) all communications subject to a Privilege between counsel for Vishay (including any Person who, at the time of the communication, was an employee of Vishay or its Group in the capacity of in-house counsel, regardless of whether such employee is or becomes an employee of VPG or any member of its Group) and any Person who, at the time of the communication, was an employee of Vishay, regardless of whether such employee is or becomes an employee of VPG or any member of its Group. Privileged Information of VPG and its Group includes but is not limited to (x) any and all VPG Information, whether or not it is in the possession of Vishay or any member of its Group; and (y) all communications subject to a Privilege occurring after the Distribution between counsel rendered for the ~~MGF Business (including in-house counsel and former in-house counsel who are employees~~ collective benefit of Vishay) and any Person who, at the time of the communication, was an employee of VPG, any member of its Group or the MGF Business regardless of whether such employee was, is or becomes an employee of Vishay or any member of its Group. (b) Upon receipt by Vishay or VPG, or any each of the members of the ~~respective Groups~~Parent Group and the SpinCo Group, and that each of the members of the Parent Group and the SpinCo Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges that may be asserted under applicable Law in connection therewith. The Parties recognize that legal and other professional services will be provided following the Effective Time, which services will be rendered solely for the benefit of the Parent Group or the SpinCo Group, as the case may be. In furtherance of the foregoing, each Party shall authorize the delivery to and/or retention by the other Party of materials existing as of the Effective Time that are necessary for such other Party to perform such services. (b) The Parties agree as follows: (i) Parent shall 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 Parent Business and not to the SpinCo Business, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. Parent shall also 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 any Parent Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the Parent Group or any member of the SpinCo Group. (ii) SpinCo shall 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 SpinCo Business and not to the Parent Business, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent Group. SpinCo shall also 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 any SpinCo Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the Privileged Information is in the possession or under the control of any member of the SpinCo Group or any member of the Parent 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 Parent Business, solely to the SpinCo Business, or to both the Parent Business and the SpinCo Business. (c) Subject to the remaining provisions of this Section 6.8, the Parties agree that they shall have a shared privilege or immunity with respect to all privileges and immunities not allocated pursuant to Section 6.8(b) and all privileges and immunities relating to any Actions or other matters that involve both Parties (or one (1) or more members of their respective Groups) and in respect of which both Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by either Party without the consent of the other Party. (d) If any Dispute arises between the Parties or any members of their respective Groups 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 Groups, 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. Further, each Party specifically agrees that it shall not withhold its consent to the waiver of a privilege or immunity for any purpose, except in good faith to protect its own legitimate interests. (e) In the event of any Dispute between Parent and SpinCo, or any members of their respective Groups, either Party may waive a privilege in which the other Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 6.8(c); provided that the Parties intend such waiver of a shared privilege to be effective only as to the use of information with respect to the Action between the Parties and/or the applicable members of their respective Groups, and is not intended to operate as a waiver of the shared privilege with respect to any Third Party. (f) Upon receipt by either Party, or by any member of its respective Group, of any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of Privileged Information of subject to a shared privilege or immunity or as to which another Party has the ~~other~~ sole right hereunder to assert a privilege or immunity, or if ~~Vishay or VPG, or any of members of their respective Groups, as the case may be,~~ either Party obtains knowledge that any of its, or any member of its respective Group’s, current or former ~~employee of Vishay~~ directors, officers, agents or ~~VPG, as the case may be, receives~~ employees has received any subpoena, discovery or other request ~~from any third party~~ that ~~actually or arguably calls for~~ may reasonably be expected to result in the production or disclosure of such Privileged ~~Information of the other~~Information, ~~Vishay or VPG, as the case may be,~~ 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 Privileged Information and to assert any rights it or they may have under this Section ~~4.6~~ 6.8 or ~~otherwise~~ otherwise, to prevent the production or disclosure of such Privileged Information. (g) Any furnishing of, or access or transfer of, any information pursuant to this Agreement is made in reliance on the agreement between Parent and SpinCo set forth in this Section 6.8 and in Section 6.9 to maintain the confidentiality of Privileged Information and to assert and maintain all applicable privileges and immunities. ~~Vishay or VPG~~The Parties agree that their respective rights to any access to information, as witnesses and other Persons, the ~~case may be, will not~~furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement, and ~~will cause~~ the transfer of Privileged Information between the Parties and members of their respective Groups to not, produce or disclose to any third party any of the other’s Privileged Information under this Section 4.6 unless (i) the non-disclosing party has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review (or for which the period for appeal or review has lapsed) finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule, in which case, such Information shall be subject to Section 4.5. (c) Vishay’s transfer of books and records pertaining to the MGF Business and other Information to VPG, Vishay’s agreement to permit VPG to obtain Information existing prior to the Distribution, VPG’s transfer of books and records pertaining to the Vishay Business, if any, and other Information to Vishay and VPG’s agreement to permit Vishay to obtain Information existing prior to the Distribution are made in reliance on Vishay’s and VPG’s respective agreements, as set forth in Section 4.5 and this Section 4.6, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Vishay or VPG, as the case may be. The access to Information, witnesses and individuals being granted pursuant to Sections 4.3 and 4.4 and the disclosure to VPG and Vishay of Privileged Information relating to the MGF Business or the Vishay Business needed pursuant to this ~~Agreement in connection with the Separation and Distribution~~ Agreement, shall not be ~~asserted by Vishay or VPG to constitute, or otherwise deemed,~~ deemed a waiver of any ~~Privilege~~ privilege that has been or may be asserted under this ~~Section 4.6~~ Agreement or otherwise~~. Nothing in this Agreement shall operate to reduce, minimize~~ . (h) In connection with any matter contemplated by Section 6.7 or ~~condition the rights granted to Vishay and VPG in, or the obligations imposed upon Vishay and VPG by,~~ this Section ~~4.6~~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

Samples: Separation and Distribution Agreement (GXO Logistics, Inc.), Separation and Distribution Agreement (GXO Logistics, Inc.)

Common use of Privileged Matters Clause in Contracts