Common use of Allocation of Assets Clause in Contracts

Allocation of Assets. (a) For purposes of the Separation Agreement, “Flash Assets” shall include, in each case to the extent existing and owned or held immediately prior to the Separation Time by any member of the WDC Group or the Spinco Group, all of the WDC Group’s and the Spinco Group’s respective right, title and interest in, to and under the following Assets: (i) With respect to Spinco Employees, as permitted by applicable Law, subject at all times to compliance with applicable Privacy Laws, subject to Section 5.3 of the Separation Agreement, and solely to the extent determined by WDC to be necessary for the Parties to comply in good faith with the terms of this Agreement, in the possession of a member of the WDC Group or the Spinco Group, and to the extent practicable: all personnel files as they are currently maintained, whether as hard copies or as electronic books and records, whether in Workday, OneDrive, or other easily accessible and transferrable system and that relate to the employment of such Spinco Employees with the members of the WDC Group or the Spinco Group, in each case excluding any Intellectual Property Rights other than Spinco IP embodied therein (collectively, the “Spinco Employee Books and Records”); provided, however, that: (x) WDC shall be entitled to retain a copy of any and all Spinco Employee Books and Records, which shall be subject to the provisions of Section 2 of the Separation Agreement and deemed the Confidential Information of Spinco and subject to the provisions of Section 6.6 of the Separation Agreement; (y) WDC may retain any materials that are not reasonably practicable to identify and extract subject to the right of access pursuant to Section 5.1 of the Separation Agreement, which shall be deemed the Confidential Information of Spinco and subject to Section 6.6 of the Separation Agreement; and (z) WDC shall be entitled to redact any portion of the Spinco Employee Books and Records to the extent related to any matter other than the Flash Business; provided, however, that such retained materials shall be deemed Confidential Information of Spinco and subject to the provisions of Section 6.6 of the Separation Agreement. For illustrative purposes only, a Spinco Employee’s personnel file would include, but is not limited to, onboarding documents, the Employee Invention and Confidential Agreement, privacy notices or consent, payroll and benefit elections, discipline records, documents signed by the Spinco Employee that relate to obtaining or holding employment, and performance-related documents, such as promotion records, incentive awards (short and long-term), quarterly check-ins, and performance designations, all of which are regularly maintained by People Support. (ii) With respect to Spinco Independent Contractors, as permitted by applicable Law, subject at all times to compliance with applicable Privacy Laws, subject to Section 5.3 of the Separation Agreement, and solely to the extent determined by WDC to be necessary for the Parties to comply in good faith with the terms of this Agreement, in the possession of a member of the WDC Group or the Spinco Group, and to the extent practicable: all electronic books and records that are housed in the Wand system and relate to the onboarding and offboarding of such Spinco Independent Contractors with the members of the WDC Group or the Spinco Group, in each case excluding any non-electronic records and any Intellectual Property Rights other than Spinco IP embodied therein (collectively, the “Spinco Independent Contractor Books and Records”); provided, however, that: (x) WDC shall be entitled to retain a copy of any and all Spinco Independent Contractor Books and Records, which shall be subject to the provisions of Section 2 of the Separation Agreement and deemed the Confidential Information of Spinco and subject to the provisions of Section 6.6 of the Separation Agreement; (y) WDC may retain any materials that are not reasonably practicable to identify and extract subject to the right of access pursuant to Section 5.1 of the Separation Agreement, which shall be deemed the Confidential Information of Spinco and subject to Section 6.6 of the Separation Agreement; and (z) WDC shall be entitled to redact any portion of the Spinco Independent Contractor Books and Records to the extent related to any matter other than the Flash Business; provided, however, that such retained materials shall be deemed Confidential Information of Spinco and subject to the provisions of Section 6.6 of the Separation Agreement. (b) Notwithstanding Section 2.1(a), for purposes of the Separation Agreement, “Excluded Assets” shall include the employment and personnel records of (i) employees or service providers of the WDC Group or the Spinco Group who are not Spinco Employees or Spinco Independent Contractors, (ii) the Spinco Employees, including, for the avoidance of doubt, records the transfer of which is prohibited by Law or otherwise by reason of any agreement with Spinco Employees or any Person representing any of them (subject to the provisions of Section 1.8(a) of the Separation Agreement), and (iii) any materials subject to any Privileges in accordance with Section 5.3 of the Separation Agreement. (c) As applicable with respect to WDC Employees, Spinco shall, or shall cause the appropriate member of the Spinco Group to, transfer or cause to be transferred all employment and personnel files of the WDC Employees as of the WDC Transfer Date, in the same manner and subject to the same requirements as provided in Section 2.1(a)(i) above with respect to Spinco Employees. For the avoidance of doubt, such records shall be “Excluded Assets” for purposes of the Separation Agreement.