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 ANY PARTY OF ANY SUBPOENA, DISCOVERY OR OTHER
REQUEST WHICH ARGUABLY CALLS FOR THE PRODUCTION OR DISCLOSURE OF INFORMATION
SUBJECT TO A SHARED PRIVILEGE OR AS TO WHICH THE OTHER PARTY HAS THE SOLE RIGHT
HEREUNDER TO ASSERT A PRIVILEGE, OR IF ANY PARTY OBTAINS KNOWLEDGE THAT ANY OF
ITS CURRENT OR FORMER DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES HAS RECEIVED ANY
SUBPOENA, DISCOVERY OR OTHER REQUEST WHICH ARGUABLY CALLS FOR THE PRODUCTION OR
DISCLOSURE OF SUCH PRIVILEGED INFORMATION, SUCH PARTY SHALL PROMPTLY NOTIFY THE
OTHER PARTY OF THE EXISTENCE OF THE REQUEST AND SHALL PROVIDE THE OTHER PARTY A
REASONABLE OPPORTUNITY TO REVIEW THE INFORMATION AND TO ASSERT