Common use of Attorney-Client Privilege; Continued Representation Clause in Contracts

Attorney-Client Privilege; Continued Representation. The Parties hereto hereby acknowledge that Xxxxxx LLP has acted as counsel to the Company in connection with the transactions contemplated herein. The following provisions apply to the attorney-client relationship between (a) the Company and Xxxxxx LLP prior to Closing and (b) Sellers (and any subset of them) and Xxxxxx LLP following Closing. Each of the Parties hereto agrees that (i) it will not seek to disqualify Xxxxxx LLP from acting and continuing to act as counsel to any of the Sellers either in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to the transactions contemplated herein because of their representation of the Company in connection with the transactions contemplated herein; and (ii) the Sellers have a reasonable expectation of privacy with respect to their communications (including any e-mail communications using the Company’s e-mail system) with Xxxxxx LLP prior to the Closing to the extent such communications concern the transactions contemplated by this Agreement. The parties furthermore agree that for the purposes of the attorney-client privilege, any communications between Xxxxxx LLP and the Company or the Sellers that were made in the course of negotiating the transactions contemplated by this Agreement that relate to the subject matter of this Agreement or that may be relevant to any claims for indemnification under this Agreement or any other dispute arising in connection with the transactions contemplated hereby (“Protected Communications”) shall be deemed privileged communications of the Sellers for the purposes of such claims or disputes, and to the extent that they may not be considered as such at law, the parties hereto agree to contractually treat such Protected Communications as if they were privileged communications of the Sellers; provided, however, that, for the avoidance of doubt, the foregoing shall not apply to communications between Xxxxxx LLP and Buyer or Xxxxxx LLP and Third Security, LLC and its Affiliates in connection with Xxxxxx’x representation of the foregoing Persons, whether in connection with filings required under the Xxxx-Xxxxx-Xxxxxx Act or otherwise

Attorney-Client Privilege; Continued Representation. The (a) Each of the Parties hereto hereby acknowledge that acknowledges and agrees, on its own behalf and on behalf of its directors, members, shareholders, partners, officers, employees, and Affiliates, that: (i) Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP has acted as counsel to the Company Entities and Sellers in connection with the negotiation, preparation, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereinhereby. Buyer and the Company Entities agree, and Xxxxx shall cause the Company Entities to agree, that, from and after the Closing, such representation and any prior representation of the Company Entities and Sellers by Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP shall not preclude Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP from serving as counsel to Sellers or any director, manager, member, officer, or employee of Sellers, in connection with any Claim arising out of or relating to this Agreement or the transactions contemplated hereby. (ii) From and after the Closing, Buyer and the Company Entities shall not, and Buyer shall cause the Company Entities not to, seek or have Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP disqualified from any such representation based on the prior representation of the Company Entities or Sellers by Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP. Each of Buyer and the Company Entities hereby consents thereto and waives any conflict of interest arising from such prior representation, and each of Buyer and the Company Entities shall cause any of its Affiliates to consent to waive any conflict of interest arising from such representation. Each of Buyer and the Company Entities acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the Parties have consulted with counsel or have been advised they should do so in connection herewith. The following provisions apply covenants, consent and waiver contained in this Section 10.03(a) shall not be deemed exclusive of any other rights to the attorney-client relationship between (a) the Company and Xxxxxx LLP prior which any Seller is entitled whether pursuant to Closing and law, contract, or otherwise. (b) Sellers (and any subset of them) and Xxxxxx LLP following Closing. Each of the Parties hereto agrees that (i) it will not seek to disqualify Xxxxxx LLP from acting each of Sellers and continuing to act as counsel to any of the Sellers either in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to the transactions contemplated herein because of their representation of the Company in connection with the transactions contemplated herein; and (ii) the Sellers have Entities has a reasonable expectation of privacy with respect to their its communications (including any e-mail communications using the Company’s Company Entities’ and Sellers’ e-mail system) with Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP prior to the Closing to the extent such communications concern the transactions contemplated by this Agreement. The parties Parties furthermore agree that for the purposes of the attorney-client privilege, any communications between Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP and the Company Entities or the Sellers that were made in the course of negotiating the transactions contemplated by this Agreement that relate to the subject matter of this Agreement or that may be relevant to any claims Claims for indemnification or otherwise under this Agreement or any other dispute arising in connection with the transactions contemplated hereby (“Protected Communications”) shall be deemed privileged communications of the Sellers for the purposes of such claims Claims or disputes, and to the extent that they may not be considered as such at law, the parties Parties hereto agree to contractually treat such Protected Communications as if they were privileged communications of Sellers. Accordingly, Buyer and the Company Entities shall not have access to any Protected Communications or to the files of Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP relating to such engagement from and after Closing and may not use or rely on any Protected Communications in any claim, dispute, action, suit, or proceeding against or involving Sellers; . Without limiting the generality of the foregoing, from and after the Closing, (i) Sellers (and not Buyer or the Company Entities) shall be the sole holders of the attorney-client privilege with respect to such engagement, and none of Buyer or the Company Entities shall be a holder thereof, (ii) to the extent that files of Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP in respect of such engagement constitute property of the client, only Sellers (and not Buyer nor the Company Entities) shall hold such property rights and (iii) Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer or the Company Entities by reason of any attorney-client relationship between Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx LLP and the Company Entities or otherwise. Notwithstanding the foregoing, in the event that a dispute arises between Buyer or any of its Affiliates (including the Company Entities), on the one hand, and a third party other than Sellers (or any Affiliate thereof), on the other hand, Buyer and its Affiliates (including the Company Entities) may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, however, thatthat neither Buyer nor any of its Affiliates (including the Company Entities) may waive such privilege without the prior written consent of Sellers, for the avoidance of doubt, the foregoing which consent shall not apply to communications between Xxxxxx LLP and Buyer be unreasonably withheld, conditioned, or Xxxxxx LLP and Third Security, LLC and its Affiliates in connection with Xxxxxx’x representation of the foregoing Persons, whether in connection with filings required under the Xxxx-Xxxxx-Xxxxxx Act or otherwisedelayed.

Attorney-Client Privilege; Continued Representation. The Parties hereto hereby acknowledge (a) Each Party acknowledges and agrees that Xxxxxx Xxxxxx, XxXxxxxxx & Fish LLP (“Xxxxxx”) has acted as counsel to the Company Seller, Bank and Parent in connection with the transactions contemplated hereinnegotiation of this Agreement and consummation of the Transactions. The following provisions apply Xxxxx hereby consents and agrees to Xxxxxx representing Seller, Bank and Parent after the Closing, including with respect to disputes in which the interests of Seller may be directly adverse to Buyer and its Subsidiaries, and even though Xxxxxx may have represented Seller in a matter substantially related to any such dispute, or may be handling ongoing matters. In connection with the foregoing, Xxxxx hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Xxxxxx’x prior representation of Seller with respect to a matter where Buyer is adverse to Seller, and (ii) Xxxxxx’x representation of Seller prior to and after the Closing. (b) Buyer further agrees that all communications in any form or format whatsoever between or among Xxxxxx, on the one hand, and Seller, Bank or Parent, or any of their respective directors, officers, advisors, employees or other representatives, on the other hand, that relate in any way to the negotiation, documentation and consummation of the Transactions or any dispute arising under this Agreement that are attorney-client privileged (collectively, the “Privileged Communications”) and the expectation of client confidence relating thereto belong solely to Seller and shall be controlled by Seller, Bank or Parent, as applicable, and shall not pass to or be claimed by Buyer or any of its Affiliates. (c) Notwithstanding the foregoing, in the event that a dispute arises between Xxxxx, on the one hand, and a third party other than Seller, on the other hand, Buyer may assert the attorney-client privilege to prevent the disclosure of the Privileged Communications to such third party; provided, however, that Buyer may not waive such privilege without the prior written consent of Seller, Bank or Parent, as applicable. In the event that Buyer is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Communications, Buyer shall use reasonable best efforts to promptly notify Seller in writing so that Seller can seek a protective order and Buyer agrees to use reasonable best efforts, at the expense of Seller, to assist therewith. (d) To the extent that files or other materials maintained by Xxxxxx relating to (i) Seller, Bank or Parent, or (ii) Buyer to the extent they relate in any way to the negotiation, documentation and consummation of the Transactions or any dispute arising under this Agreement, constitute property of its clients, only Seller, Bank or Parent, as applicable, shall hold such property rights and Xxxxxx shall have no duty to reveal or disclose any such files or other materials or any Privileged Communications by reason of any attorney-client relationship between (a) Xxxxxx, on the Company one hand, and Xxxxxx LLP prior to Closing and (b) Sellers (and any subset of them) and Xxxxxx LLP following ClosingSeller, Bank or Parent, on the other hand. Each of the Parties hereto Xxxxx agrees that (i) it will not knowingly without the consent of the Seller, seek to disqualify obtain the Privileged Communications from Xxxxxx. (e) Notwithstanding the forgoing, (x) any communication or advice of Xxxxxx LLP from acting and continuing to act as counsel to any of the Sellers either in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to the transactions contemplated herein because of their representation of the Company in connection with the transactions contemplated herein; and (ii) the Sellers have a reasonable expectation of privacy with respect to their communications (including any e-mail communications using the Company’s e-mail system) with Xxxxxx LLP that was made prior to the Closing with or to Seller regarding legal matters involving the extent such communications concern the transactions contemplated by this Agreement. The parties furthermore agree Business that was not made or given for the purposes purpose of the attorney-client privilegenegotiation, any communications between Xxxxxx LLP documentation, and consummation of the Company or the Sellers that were made in the course of negotiating the transactions contemplated by this Agreement that relate to the subject matter of this Agreement or that may be relevant to any claims for indemnification under this Agreement or any other dispute arising in connection with the transactions contemplated hereby (“Protected Communications”) Transactions shall be deemed privileged communications the property of Buyer from and after the Sellers for the purposes of such claims or disputesClosing, and to (y) Seller may not waive any legal privilege or right of confidentiality covering any Privileged Communications vis-à-vis a third party without the extent that they prior written consent of Buyer (which consent may not be considered as such at lawunreasonably withheld, the parties hereto agree to contractually treat such Protected Communications as if they were privileged communications of the Sellers; provided, however, that, for the avoidance of doubt, the foregoing shall not apply to communications between Xxxxxx LLP and Buyer conditioned or Xxxxxx LLP and Third Security, LLC and its Affiliates in connection with Xxxxxx’x representation of the foregoing Persons, whether in connection with filings required under the Xxxx-Xxxxx-Xxxxxx Act or otherwisedelayed).

Attorney-Client Privilege; Continued Representation. The Parties hereto Buyer and Seller hereby acknowledge that Xxxxxx Xxxxxxx LLP has acted as counsel to the Company in connection and Seller with respect to the transactions contemplated hereinby this Agreement. The following provisions in this Section 9.13 apply to the attorney-client relationship between (a) the Company and Xxxxxx Xxxxxxx LLP prior to Closing and the Closing, (b) Sellers Seller and Xxxxxxx LLP prior to the Closing, and (c) Seller and any subset of them) and Xxxxxx Xxxxxxx LLP following the Closing. Each of the Parties hereto party hereby agrees that (i) it (for itself or on behalf of the Company after Closing) will not seek to disqualify Xxxxxx Xxxxxxx LLP based solely on its past representation of the Company from acting and continuing to act as counsel to Seller or any of the Sellers either his Affiliates in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to the transactions contemplated herein because of their representation of the Company in connection with the transactions contemplated hereinby this Agreement; and (ii) the Sellers have Seller has a reasonable expectation of privacy with respect to their his and the Company’s communications (including any e-mail email communications using the Company’s e-mail email system) with Xxxxxx Xxxxxxx LLP occurring prior to the Closing to the extent that such communications concern the transactions contemplated herein and were confidential between the Company and Xxxxxxx LLP when made (the “Privileged Communications”); (iii) Seller (and, following the Closing, not Buyer or any of its Affiliates, including the Company) shall have access to the Privileged Communications and such Privileged Communications are hereby expressly assigned to and, after the Closing, controlled by this Agreement. The parties furthermore agree that for Seller; (iv) Buyer and, after the purposes Closing, the Company, shall be prohibited from making use of the attorney-client privilege, any communications between Xxxxxx Privileged Communications; and (v) the files generated and maintained by Xxxxxxx LLP and as a result of its representation of the Company or the Sellers that were made in the course of negotiating the transactions contemplated by this Agreement that relate to the subject matter of this Agreement or that may be relevant to any claims for indemnification under this Agreement or any other dispute arising Seller in connection with this Agreement and the transactions transaction contemplated hereby (“Protected Communications”) hereunder shall be deemed privileged communications and become the exclusive property of the Sellers for the purposes of such claims or disputes, and to the extent that they may not be considered as such at law, the parties hereto agree to contractually treat such Protected Communications as if they were privileged communications of the Sellers; provided, however, that, for the avoidance of doubt, the foregoing shall not apply to communications between Xxxxxx LLP and Buyer or Xxxxxx LLP and Third Security, LLC and its Affiliates in connection with Xxxxxx’x representation of the foregoing Persons, whether in connection with filings required under the Xxxx-Xxxxx-Xxxxxx Act or otherwiseSeller.

Attorney-Client Privilege; Continued Representation. The (a) Each of the Parties hereto hereby acknowledge acknowledges and agrees that Xxxxxx Xxxxxxx & Xxxxxxxxxx LLP has and Xxxxxxx Procter LLP (“Hinshaw/Goodwin”) have acted as counsel to the Company Company, the Member Representative, the Members and their respective Affiliates in connection with the negotiation of this Agreement and consummation of the transactions contemplated herein. hereby. (b) The following provisions apply Purchaser hereby consents and agrees to, and agrees to the attorney-client relationship between (a) cause the Company and Xxxxxx LLP prior its Subsidiaries to Closing consent and agree to, Xxxxxxx/Xxxxxxx representing the Members or any of their direct or indirect equity holders (bcollectively, the “Seller Parties”) Sellers (and any subset of them) and Xxxxxx LLP following after the Closing. Each , including with respect to disputes in which the interests of the Seller Parties hereto may be directly adverse to Purchaser and its Subsidiaries (including the Company and its Subsidiaries), and even though Xxxxxxx/Xxxxxxx may have represented the Company or its Subsidiaries in a matter substantially related to any such dispute, or may be handling ongoing matters for any of the Company or its Subsidiaries. The Purchaser further consents and agrees that to, and after the Closing, agrees to cause the Company and its Subsidiaries to consent and agree to, the communication by Xxxxxxx/Xxxxxxx to the Seller Parties in connection with any such representation of any fact known to Xxxxxxx/Xxxxxxx arising by reason of Xxxxxxx/Xxxxxxx’x prior representation of any of the Company or its Subsidiaries. (c) In connection with the foregoing, the Purchaser hereby irrevocably waives and agrees not to assert, and agrees, after the Closing, to cause the Company and its Subsidiaries to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) it will not seek to disqualify Xxxxxx LLP from acting and continuing to act as counsel to any of the Sellers either in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to the transactions contemplated herein because of their Xxxxxxx/Xxxxxxx’x prior representation of the Company in connection with the transactions contemplated herein; or its Subsidiaries and (ii) Xxxxxxx/Xxxxxxx’x representation of any of the Sellers have a reasonable expectation Seller Parties prior to and after the Closing. (d) The Purchaser further agrees, on behalf of privacy with respect to their itself and, after the Closing, the Company and its Subsidiaries, that all communications (including in any e-mail communications using form or format whatsoever between or among Xxxxxxx/Xxxxxxx, on the one hand, and the Company’s e-mail system) with Xxxxxx LLP prior , its Subsidiaries, any Seller Party, or any of their respective directors, officers employees or other representatives, on the other hand, that relate in any way to the Closing to the extent such communications concern the transactions contemplated by this Agreement. The parties furthermore agree that for the purposes negotiation, documentation and consummation of the attorney-client privilege, any communications between Xxxxxx LLP and the Company or the Sellers that were made in the course of negotiating the transactions contemplated by this Agreement that relate to the subject matter of this Agreement or that may be relevant to any claims for indemnification dispute arising under this Agreement or any other dispute arising in connection with (collectively, the transactions contemplated hereby (“Protected Privileged Communications”) shall be deemed to be attorney-client privileged communications and that the Privileged Communications and the expectation of client confidence relating thereto belong solely to the Seller Parties, shall be controlled by the Member Representative on behalf of the Sellers for Seller Parties and shall not pass to or be claimed by the purposes Purchaser, the Company or any of such claims the Company’s Subsidiaries. (e) Notwithstanding the foregoing, in the event that a dispute arises between the Purchaser, the Company or disputesany of its Subsidiaries, on the one hand, and to a third party other than a Seller Party, on the extent that they may not be considered as such at lawother hand, the parties hereto agree Purchaser, the Company or any of its Subsidiaries may assert the attorney-client privilege to contractually treat such Protected Communications as if they were privileged communications prevent the disclosure of the SellersPrivileged Communications to such third party; provided, however, thatthat none of the Purchaser, for Company or any of its Subsidiaries may waive such privilege without the avoidance prior written consent of doubtthe Member Representative (such consent not to be unreasonably withheld, conditioned or delayed). In the event that the Purchaser, the foregoing Company or any of its Subsidiaries is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged Communications, the Purchaser shall, if permitted under applicable Law, promptly (and, in any event, within two (2) Business Days) notify the Member Representative in writing (including by making specific reference to this Section 12.17) so that the Member Representative can seek a protective order and the Purchaser agrees to use all commercially reasonable efforts, at the expense of the Members, to assist therewith. (f) To the extent that files or other materials maintained by Xxxxxxx/Xxxxxxx constitute property of its clients, only the Member Representative and the Seller Parties shall not apply hold such property rights and Xxxxxxx/Xxxxxxx shall have no duty to communications reveal or disclose any such files or other materials or any Privileged Communications by reason of any attorney-client relationship between Xxxxxx LLP Xxxxxxx/Xxxxxxx, on the one hand, and Buyer the Company or Xxxxxx LLP any of the Company’s Subsidiaries, on the other hand. (g) The Purchaser agrees that it will not, and Third Security, LLC that it will cause the Company and its Affiliates in connection with Xxxxxx’x representation Subsidiaries not to, (i) access or use the Privileged Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the foregoing PersonsSeller or any Seller Party waive the attorney-client or other privilege, whether in connection with filings required under or by otherwise asserting that the XxxxPurchaser, the Company or any of its Subsidiaries has the right to waive the attorney-Xxxxx-Xxxxxx Act client or otherwiseother privilege or (ii) seek to obtain the Privileged Communications from Xxxxxxx/Xxxxxxx.

Attorney-Client Privilege; Continued Representation. The Parties hereto hereby acknowledge that Xxxxxx LLP Xxxx Xxxxx & Xxxx PLC has acted as counsel to the Company in connection and certain Company Equityholders from time to time prior to the Merger as well as with respect to the transactions contemplated hereinMerger. The following provisions apply to the attorney-client relationship between (a) the Company and Xxxxxx LLP Xxxx Xxxxx & Xxxx PLC prior to the Closing and (b) Sellers such Company Equityholders (and any subset of them) and Xxxxxx LLP Xxxx Xxxxx & Xxxx PLC following Closing. Each of the Parties hereto agrees that (i) it will not seek to disqualify Xxxxxx LLP Xxxx Xxxxx & Xxxx PLC from acting and continuing to act as counsel to any of the Sellers Company Equityholders on the grounds of a conflict of interest arising from Xxxx Xxxxx & Xxxx PLC’s prior representation of the Company or the Company Equityholders either in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to the transactions contemplated herein because of their representation of the Company in connection with the transactions contemplated hereinMerger; and (ii) the Sellers Company Equityholders have a reasonable expectation of privacy with respect to their communications (including any e-mail communications using the Company’s e-mail system) with Xxxxxx LLP Xxxx Xxxxx & Xxxx PLC prior to the Closing to the extent that such communications concern the negotiation, documentation and consummation of the Merger and the transactions contemplated hereby and (iii) the Company Equityholders (and not the Parent) shall have access to all such communications. Furthermore, Purchaser and its Affiliates (including the Surviving Corporation after the Closing) shall have no right to intentionally or knowingly access any attorney work product, or attorney-client privileged material of, Bass, Xxxxx & Xxxx PLC, including any communications to or by Bass, Xxxxx & Xxxx PLC made in connection with the negotiation, preparation, execution, delivery and Closing under, or any dispute or proceeding arising under or in connection with, this Agreement or any of the transactions contemplated hereby, which attorney work product and privileged materials shall be retained solely by the Company Equityholders after the Closing. The Parties hereto expressly acknowledge and agree that all rights to such attorney-client privilege and to control such attorney-client privilege shall be retained by the Company Equityholders and shall not pass to or be claimed by Parent, the Surviving Corporation or any of their respective Affiliates. In the event that a dispute or investigation or audit arises after the Closing between Purchaser or the Surviving Corporation (or any of their respective Affiliates), on the one hand, and a third party, on the other hand, Purchaser or the Surviving Corporation, as applicable, shall notify the Representative if such third party seeks disclosure of confidential communications by Bass, Xxxxx & Xxxx PLC that fall (or would be deemed to fall) within the privilege that the Company Equityholders have retained as described in this Section 9.12 in order to allow the Company Equityholders to timely intervene and assert privilege. Notwithstanding anything to the contrary in this Agreement. The parties furthermore agree , in the event that for a dispute arises between the purposes Parent, the Surviving Corporation or any of their respective Subsidiaries and a third party after the Closing, the Parent, the Surviving Corporation or any of their respective Subsidiaries may assert the attorney-client privilege, privilege to prevent disclosure of any communications between Xxxxxx LLP and the Company or the Sellers that were made in the course of negotiating the transactions contemplated by this Agreement that relate to the subject matter of this Agreement or that may be relevant to any claims for indemnification under this Agreement or any other dispute arising in connection with the transactions contemplated hereby (“Protected Communications”) shall be deemed privileged communications of the Sellers for the purposes of by Xxxx Xxxxx & Xxxx PLC to such claims or disputes, and to the extent that they may not be considered as such at law, the parties hereto agree to contractually treat such Protected Communications as if they were privileged communications of the Sellers; provided, however, that, for the avoidance of doubt, the foregoing shall not apply to communications between Xxxxxx LLP and Buyer or Xxxxxx LLP and Third Security, LLC and its Affiliates in connection with Xxxxxx’x representation of the foregoing Persons, whether in connection with filings required under the Xxxx-Xxxxx-Xxxxxx Act or otherwisethird party.

Attorney-Client Privilege; Continued Representation. The Parties hereto (a) Seller and the Company hereby acknowledge inform Buyer that Xxxxxx LLP each of the Company, Seller and their respective Subsidiaries have retained Xxxxx Xxxx to act as its counsel in connections with transactions contemplated herein and that Xxxxx Xxxx has not acted as counsel to for the Company other Parties in connection with the transactions contemplated herein and that the other Parties do not have the status of a client of Xxxxx Xxxx for conflict of interest or any other purposes as a result thereof. (b) The Parties hereby agree that, in the event that a dispute arises under this Agreement after the Closing between Buyer, the Company, and/or its Subsidiaries on the one hand, and Seller and its post-Closing Affiliates on the other hand (an “Agreement Dispute”), Xxxxx Xxxx may represent Seller and/or such post-Closing Affiliates in any Agreement Dispute even though the interests of Seller and/or such post-Closing Affiliates may be directly adverse to Buyer, the Company or its Subsidiaries, and even though Xxxxx Xxxx may have represented the Company or its Subsidiaries in a matter substantially related to such Agreement Dispute, or may be handling other matters for Buyer, the Company or any of their Subsidiaries. (c) Buyer further agrees that, in any Agreement Dispute, the portion of the communications among Xxxxx Xxxx, Seller and its Affiliates (other than the Company and its Subsidiaries), and, for communications made prior to the Closing, the Company and its Subsidiaries, that (i) relate in any way to the transactions contemplated herein. The following provisions apply , and (ii) are subject to the attorney-client relationship between privilege (a) communications meeting the Company and Xxxxxx LLP prior to Closing and (b) Sellers (and any subset requirements of them) and Xxxxxx LLP following Closing. Each of the Parties hereto agrees that clauses (i) it and (ii) of this sentence are collectively referred to as the “Protected Communications”), the attorney-client privilege and the expectation of client confidence belongs to Seller, will be controlled by Seller and, except as expressly provided in Section 10.04(d), shall not seek pass to disqualify Xxxxxx LLP from acting and continuing to act as counsel to or be claimed by Buyer, the Company or any of their Subsidiaries. (d) The Parties hereby agree that the Sellers either protections afforded to Seller in Section 10.04(c) shall not be considered, and are not, a waiver by Buyer, the Company or their Subsidiaries of any attorney-client privilege that they may have over the Protected Communications as against any third party other than Seller and its post-Closing Affiliates (an “Unaffiliated Party”). In the event of a dispute hereunder or between Buyer, the Company, and/or its Subsidiaries, on the one hand, and an Unaffiliated Party on the other hand (an “Unaffiliated Party Suit”), Buyer, the Company and its Subsidiaries may assert the attorney-client privilege to prevent the disclosure of any Protected Communications to such Unaffiliated Party. Notwithstanding anything to the contrary set forth in this Agreement, in the course event that any of Buyer, the defense Company or prosecution its Subsidiaries is required or requested by Court Order to produce, or otherwise to access or obtain a copy of, all or a portion of a Protected Communication, Buyer shall be entitled to so produce, access or obtain such Protected Communication, provided that, as soon as reasonably practicable following such a Court Order, Buyer shall notify Seller in writing so that Seller can seek such remedy as may be available to Seller to prevent the production or disclosure of, or access to, any of such Protected Communications or maintain the confidentiality of any claim relating of such Protected Communications. Where Seller seeks such a remedy regarding such Protected Communications in an Unaffiliated Party Suit, Buyer agrees to the transactions contemplated herein because of their representation of reasonably assist Seller in seeking such remedy. (e) Buyer agrees that, in any Agreement Dispute, it will not, and that it will cause the Company in connection with the transactions contemplated herein; and its Subsidiaries to not, (iii) the Sellers have seek to obtain such Protected Communications, whether by seeking a reasonable expectation of privacy with respect to their communications (including any e-mail communications using the Company’s e-mail system) with Xxxxxx LLP prior to the Closing to the extent such communications concern the transactions contemplated by this Agreement. The parties furthermore agree that for the purposes waiver of the attorney-client privilegeprivilege or through other means, or (ii) use or rely on any communications between Xxxxxx LLP and of the Company or the Sellers that were made in the course of negotiating the transactions contemplated by this Agreement that relate to the subject matter of this Agreement or that Protected Communications. The Protected Communications may be relevant to used by Seller and/or any claims for indemnification under this Agreement or any other dispute arising in connection with the transactions contemplated hereby (“Protected Communications”) shall be deemed privileged communications of the Sellers for the purposes of such claims or disputes, and to the extent that they may not be considered as such at law, the parties hereto agree to contractually treat such Protected Communications as if they were privileged communications of the Sellers; provided, however, that, for the avoidance of doubt, the foregoing shall not apply to communications between Xxxxxx LLP and Buyer or Xxxxxx LLP and Third Security, LLC and its post-Closing Affiliates in connection with Xxxxxx’x representation of the foregoing Persons, whether in connection with filings required under the Xxxx-Xxxxx-Xxxxxx Act or otherwiseany Agreement Dispute.

Attorney-Client Privilege; Continued Representation. The (a) Each of the Parties hereto hereby acknowledge acknowledges and agrees that Xxxxxx LLP (“Cooley”) has acted as counsel to the Company and its Subsidiaries and their Affiliates in connection with the transactions contemplated herein. The following provisions apply to the attorney-client relationship between (a) the Company negotiation of this Agreement and Xxxxxx LLP prior to Closing and (b) Sellers (and any subset of them) and Xxxxxx LLP following Closing. Each consummation of the Parties hereto agrees that (i) it will not seek to disqualify Xxxxxx LLP from acting Merger and continuing to act as counsel to any of the Sellers either in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to the transactions contemplated herein because of their representation of the Company in connection with the transactions contemplated herein; and (ii) the Sellers have a reasonable expectation of privacy with respect to their communications (including any e-mail communications using the Company’s e-mail system) with Xxxxxx LLP prior to the Closing to the extent such communications concern the other transactions contemplated by this Agreement. . (b) The parties furthermore Buyer hereby consents and agrees to, and agrees to cause the Company and its Subsidiaries to consent and agree that for to, Cooley representing the purposes Company Equityholders, any of their direct or indirect equityholders or the Representative on behalf of the attorney-client privilegeCompany Stockholders (collectively, any communications between Xxxxxx LLP the “Company Parties”) after the Closing, including with respect to disputes in which the interests of the Company Parties may be directly adverse to the Buyer and its subsidiaries (including the Company and its Subsidiaries), and even though Cooley may have represented the Company or its Subsidiaries in a matter substantially related to any such dispute, or may be handling ongoing matters for any of the Sellers Company or its Subsidiaries. The Buyer further consents and agrees to, and agrees to cause the Company and its Subsidiaries to consent and agree to, the communication by Cooley to the Company Parties in connection with any such representation of any fact known to Cooley arising by reason of Xxxxxx’x prior representation of any of the Company or its Subsidiaries. (c) In connection with the foregoing, the Buyer hereby irrevocably waives and agrees not to assert, and agrees to cause the Company and its Subsidiaries to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Xxxxxx’x prior representation of the Company or its Subsidiaries and (ii) Xxxxxx’x representation of any of the Company Parties prior to and after the Closing. (d) The Buyer further agrees, on behalf of itself and, after the Closing, on behalf of the Company and its Subsidiaries, that were made all privileged communications in any form or format whatsoever between or among Cooley, on the course one hand, and the Company, its Subsidiaries, any Company Party, or any of negotiating their respective directors, officers employees or other representatives, on the other hand, that relate to the negotiation, documentation and consummation of the transactions contemplated by this Agreement that relate to the subject matter of this Agreement or that may be relevant to any claims for indemnification dispute arising under this Agreement or any other dispute arising in connection with (collectively, the transactions contemplated hereby (“Protected Privileged Communications”) shall be deemed to be attorney-client privileged communications and that the Privileged Communications and the expectation of client confidence relating thereto belong solely to the Company Parties, shall be controlled by the Representative on behalf of the Sellers for Company Parties and shall not pass to or be claimed by the purposes of such claims Buyer, the Company or disputesits Subsidiaries. (e) Notwithstanding the foregoing, in the event that a dispute arises between the Buyer, the Company or its Subsidiaries, on the one hand, and to a third party other than a Company Party, on the extent that they may not be considered as such at lawother hand, the parties hereto agree Buyer, the Company or its Subsidiaries may assert the attorney-client privilege to contractually treat such Protected Communications as if they were privileged communications prevent the disclosure of the SellersPrivileged Communications to such third party; provided, however, that, for that none of the avoidance of doubtBuyer, the foregoing Company or its Subsidiaries may waive such privilege without the prior written consent of the Representative on behalf of the Company Parties, which shall not apply to communications between Xxxxxx LLP and Buyer be unreasonably withheld, conditioned or Xxxxxx LLP and Third Security, LLC and its Affiliates in connection with Xxxxxx’x representation delayed. In the event that any of the foregoing PersonsBuyer, whether the Company or its Subsidiaries is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged Communications, the Buyer shall promptly (and, in connection with filings required under any event, within two (2) Business Days) notify the XxxxRepresentative on behalf of the Company Parties in writing (including by making specific reference to this Section 10.16) so that the Representative on behalf of the Company Parties can seek a protective order and the Buyer agrees to use all commercially reasonable efforts to assist therewith. (f) To the extent that files or other materials maintained by Cooley containing Privileged Communications constitute property of its clients, only the Representative and the Company Parties shall hold such property rights and Cooley shall have no duty to reveal or disclose any such files or other materials or any Privileged Communications by reason of any attorney-Xxxxxclient relationship between Cooley, on the one hand, and the Company or its Subsidiaries, on the other hand. (g) The Buyer agrees that it will not, and that it will cause the Company or its Subsidiaries not to, (i) access or use the Privileged Communications, including by way of review of any electronic data, communications or other information, or by otherwise asserting that the Buyer has the right to waive the attorney-Xxxxxx Act client or otherwiseother privilege or (ii) seek to obtain the Privileged Communications from Cooley.

Attorney-Client Privilege; Continued Representation. The Parties (a) Each Party hereto hereby acknowledge acknowledges and agrees that Xxxxxx Xxxxxx, XxXxxxxxx & Fish LLP (“Xxxxxx”) has acted as counsel to the Company in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereinhereby. The following provisions apply Parent hereby consents and agrees to, and agrees to cause the Surviving Company to consent and agree to, Xxxxxx representing the holders of Shares, including the Indemnifying Stockholder (the “ Stockholders”) after the Closing, including with respect to disputes in which the interests of the Stockholders may be directly adverse to Parent and its Affiliates, and even though Xxxxxx may have represented the Company in a matter substantially related to any such dispute, or may be handling ongoing matters. Parent further consents and agrees to, and agrees to cause the Company to consent and agree to, the communication by Xxxxxx to the attorney-client relationship between (a) Stockholders in connection with any such representation of any fact known to Xxxxxx arising by reason of Xxxxxx’x prior representation of the Company. In connection with the foregoing, Parent hereby irrevocably waives and agrees not to assert, and agrees to cause the Company to irrevocably waive and Xxxxxx LLP prior not to Closing and (b) Sellers (and assert, any subset conflict of them) and Xxxxxx LLP following Closing. Each of the Parties hereto agrees that interest arising from or in connection with (i) it will not seek to disqualify Xxxxxx LLP from acting and continuing to act as counsel to any of the Sellers either in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to the transactions contemplated herein because of their Xxxxxx’x prior representation of the Company in connection with respect to a matter where Parent or the transactions contemplated herein; Company is adverse to the Stockholders, and (ii) Xxxxxx’x representation of the Sellers have a reasonable expectation Stockholders. (b) Parent further agrees, on behalf of privacy with respect to their communications (including any e-mail communications using itself and, after the Closing, on behalf of the Company’s e-mail system) with Xxxxxx LLP prior , that all communications in any form or format whatsoever between or among Xxxxxx, on the one hand, and the Company, the Stockholders, or any of their respective directors, officers, advisors, employees or other representatives, on the other hand, that relate in any way to the Closing to the extent such communications concern the transactions contemplated by this Agreement. The parties furthermore agree that for the purposes negotiation, documentation and consummation of the attorney-client privilege, any communications between Xxxxxx LLP and the Company or the Sellers that were made in the course of negotiating the transactions contemplated by this Agreement or any dispute arising under this Agreement that relate are attorney-client privileged (collectively, the “Privileged Communications”) and the expectation of client confidence relating thereto belong solely to the subject matter Stockholders shall be controlled by the Stockholders and shall not pass to or be claimed by Parent or the Surviving Company. (c) Notwithstanding the foregoing, in the event that a dispute arises between Parent, on the one hand, and a third party other than the Stockholders, on the other hand, Parent may assert the attorney-client privilege to prevent the disclosure of this Agreement the Privileged Communications to such third party; provided, however, that Parent may not waive such privilege without the prior written consent of the Indemnifying Stockholder, such consent not to be unreasonably withheld, conditioned or delayed. In the event that may be relevant Parent is legally required by Order or otherwise to access or obtain a copy of all or a portion of the Privileged Communications, Parent shall promptly notify the Indemnifying Stockholder in writing so that the Indemnifying Stockholder can seek a protective order and Parent agrees to use commercially reasonable efforts, at the expense of the Stockholders, to assist therewith. To the extent that files or other materials maintained by Xxxxxx relating to (i) the Stockholders, or (ii) Parent to the extent they relate in any claims for indemnification under way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or any other dispute arising under this Agreement, constitute property of its clients, only the Stockholders shall hold such property rights and Xxxxxx shall have no duty to reveal or disclose any such files or other materials or any Privileged Communications by reason of any attorney-client relationship between Xxxxxx, on the one hand, and the Company, on the other hand. Parent agrees that it will not knowingly, and that it will cause the Surviving Company not to knowingly, (i) access or use the Privileged Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Stockholders waive the attorney- client or other privilege, or by otherwise asserting that Parent has the right to waive the attorney- client or other privilege, or (ii) seek to obtain the Privileged Communications from Xxxxxx. DocuSign Envelope ID: 3F6AD76A-F03C-4197-948B-5D768703E313 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties to this Agreement as of the date first written above. PROPHOTONIX LIMITED Name: Xxxxxxx X. Xxxxx Title: President and Chief Executive Officer EXAKTERA, LLC PPL MERGER SUB INC. DocuSign Envelope ID: 8E8D8BCB-636E-4736-AE03-E9080C441DB5 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties to this Agreement as of the date first written above. PROPHOTONIX LIMITED EXAKTERA, LLC Name: Xxxx Xxxxx Title: Managing Director PPL MERGER SUB INC. Name:Xxxx Xxxxxx Title: CEO 71327212v15 I. The name of the corporation is ProPhotonix Limited, and this corporation was originally incorporated pursuant to the General Corporation Law of the State of Delaware on May 27, 2011. A certain Certificate of Amendment was filed with the Delaware Secretary of State on May 28, 2014. II. The address of its registered office in the State of Delaware is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, 00000. The name of its registered agent at such address is The Corporation Trust Company. III. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. IV. The total number of shares of stock which the Corporation shall have authority to issue are: 1,000 Common Stock, par value $0.001 per share. V. The Corporation is to have perpetual existence. VI. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the bylaws of the Corporation, subject to any specific limitation provided by any bylaws adopted by the stockholders. VII. Meetings of stockholders may be held within or outside of the State of Delaware, as the by-laws may provide. The books of the Corporation may be kept (subject to any provision contained in the bylaws) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the bylaws of the Corporation. Elections of directors need not be by written ballot unless the bylaws of the Corporation shall so provide. VIII. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware, or any other applicable law, is amended to authorize corporation action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, or any other applicable law, as so amended. Any repeal or modification of this Article VIII by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. IX. The Corporation shall indemnify, advance indemnified expenses and hold harmless, in each case, to the full extent that it shall have power under applicable law to do so and in a manner permitted by such law, any person made or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation against liabilities and expenses reasonably incurred or paid by such person in connection with the transactions contemplated hereby (“Protected Communications”) shall be deemed privileged communications of the Sellers for the purposes of such claims action, suit or disputes, and to the extent that they may not be considered as such at law, the parties hereto agree to contractually treat such Protected Communications as if they were privileged communications of the Sellersproceeding; provided, however, that, except for claims for indemnification (following the avoidance final disposition of doubtsuch action, suit or proceeding) or advancement of expenses not paid in full, the foregoing Corporation shall not apply be required to communications between Xxxxxx LLP and Buyer indemnify a director or Xxxxxx LLP and Third Security, LLC and its Affiliates officer in connection with Xxxxxx’x representation an action, suit or proceeding (or part thereof, including any counterclaim) commenced by such director or officer only if the commencement of such action suit or proceeding (or part thereof, including any counterclaim) by the director or officer was authorized in the specific case by the board of directors of the foregoing PersonsCorporation. The Corporation may indemnify, advance indemnified expenses and hold harmless, in each case to the full extent that it shall have power under applicable law to do so and in a manner permitted by such law, any person made or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was an employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against liabilities and expenses reasonably incurred or paid by such person in connection with filings required such action, suit or proceeding. The words “liabilities” and “expenses” shall include, without limitation: liabilities, losses, damages, judgments, fines, penalties, amounts paid in settlement, expenses, attorneys’ fees and costs. The indemnification provided by or granted pursuant to this Article IX shall not be deemed exclusive of any other rights to which any person indemnified or being advanced expenses may be entitled under any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person. The Corporation may purchase and maintain insurance on behalf of any person referred to in the preceding paragraph against any liability asserted against and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the Xxxx-Xxxxx-Xxxxxx Act provisions of this A rticle IX or otherwise. For purposes of this A to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article IX with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. The provisions of this Article IX shall be deemed to be a contract between the Corporation and each director or officer who serves in any such capacity at any time while this Article IX and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law, if any, are in effect, and any repeal or modification of such law or of this Article IX shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such s xxxx of facts. For purposes of this Article IX, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the Corporation. X. Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of the General Corporation Law of the State of Delaware or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of the General Corporation Law of the State of Delaware, order a meeting of the creditors or class of creditors, and/or of the stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths (3/4) in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation. XI. The Corporation hereby expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware. XII. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by law, and all rights conferred upon the stockholders herein are granted subject to this reservation.

Attorney-Client Privilege; Continued Representation. The Parties hereto hereby acknowledge that Xxxxxx Buyer agrees, on its own behalf and on behalf of its directors, officers, managers, employees and Affiliates, that, following the Closing, Fenwick & West LLP has acted may serve as counsel to the Company Securityholders, the Stockholders’ Committee and their respective Affiliates in connection with any matters related to this Agreement and the transactions contemplated herein. The following provisions apply to the attorney-client relationship between (a) the Company and Xxxxxx LLP prior to Closing and (b) Sellers (and Transactions, including any subset litigation, claim or obligation arising out of them) and Xxxxxx LLP following Closing. Each of the Parties hereto agrees that (i) it will not seek to disqualify Xxxxxx LLP from acting and continuing to act as counsel to any of the Sellers either in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to this Agreement or the transactions contemplated herein because of their Transactions notwithstanding any representation of the Company in connection with the transactions contemplated herein; and (ii) the Sellers have a reasonable expectation of privacy with respect to their communications (including any e-mail communications using the Company’s e-mail system) with Xxxxxx by Fenwick & West LLP prior to the Closing Date of the Company. Buyer and the Company hereby (a) waive any claim they have or may have that Fenwick & West LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agree that, in the event that a dispute arises after the Closing between Buyer and any of the Securityholders, the Stockholders’ Committee or any of their respective Affiliates, Fenwick & West LLP may represent the Securityholders, the Stockholders’ Committee or any of their respective Affiliates in such dispute even though the interests of such Person(s) may be directly adverse to Buyer or the Company and even though Fenwick & West LLP may have represented the Company in a matter substantially related to such dispute. Buyer and the Company also further agree that, as to all communications prior to Closing among Fenwick & West LLP and the Company, the Securityholders or their Affiliates and representatives, the Stockholders’ Committee or its Affiliates and representatives, that primarily relate to the extent such communications concern the transactions negotiation of Transactions contemplated by this Agreement. The parties furthermore agree that for the purposes of hereby, the attorney-client privilege, any communications between Xxxxxx LLP privilege and the Company expectation of client confidence belongs to the Securityholders and may be controlled by the Securityholders and shall not pass to or be claimed by Buyer or the Sellers that were made Company. Notwithstanding the foregoing, in the course of negotiating event that a dispute arises between Buyer, the transactions contemplated by Company and a third party other than a party to this Agreement that relate to after the subject matter of this Agreement or that may be relevant to any claims for indemnification under this Agreement or any other dispute arising in connection with the transactions contemplated hereby (“Protected Communications”) shall be deemed privileged communications of the Sellers for the purposes of such claims or disputes, and to the extent that they may not be considered as such at lawClosing, the parties hereto agree Company may assert the attorney-client privilege to contractually treat prevent disclosure of confidential communications by Fenwick & West LLP to such Protected Communications as if they were privileged communications of the Sellersthird party; provided, however, that, for that the avoidance of doubt, Company may not waive such privilege without the foregoing shall not apply to communications between Xxxxxx LLP and Buyer or Xxxxxx LLP and Third Security, LLC and its Affiliates in connection with Xxxxxx’x representation prior written consent of the foregoing PersonsStockholders’ Committee (not to be unreasonably withheld, whether in connection with filings required under the Xxxx-Xxxxx-Xxxxxx Act conditioned or otherwisedelayed).

Attorney-Client Privilege; Continued Representation. The Parties hereto hereby acknowledge that Xxxxxx Buyer agrees, on its own behalf and on behalf of its directors, officers, managers, employees and Affiliates, that, following the Closing, either or both King & Spalding LLP has acted and/or K&L Gates LLP may serve as counsel to the Company Seller or any of its Affiliates in connection with the transactions contemplated herein. The following provisions apply any matters related to the attorney-client relationship between (a) Transaction Documents and the Company and Xxxxxx LLP prior to Closing and (b) Sellers (and Transactions, including any subset litigation, claim or obligation arising out of them) and Xxxxxx LLP following Closing. Each of the Parties hereto agrees that (i) it will not seek to disqualify Xxxxxx LLP from acting and continuing to act as counsel to any of the Sellers either in the event of a dispute hereunder or in the course of the defense or prosecution of any claim relating to the transactions contemplated herein because of their Transaction Documents or the Transactions notwithstanding any representation of the Company in connection with the transactions contemplated herein; and (ii) the Sellers have a reasonable expectation of privacy with respect to their communications (including any e-mail communications using the Company’s e-mail system) with Xxxxxx by King & Spalding LLP and/or K&L Gates LLP prior to the Closing Date of the Company. Buyer, on behalf of itself and the Company, hereby (a) waives any claim they or their Affiliates have or may have that King & Spalding LLP and/or K&L Gates LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agrees that, in the event that a dispute arises after the Closing between Buyer and Seller or any of their respective Affiliates, King & Spalding LLP and/or K&L Gates LLP may represent Seller or any of its Affiliates in such dispute even though the interests of such Person(s) may be directly adverse to Buyer or its Affiliates (including the Company) and even though King & Spalding LLP and/or K&L Gates LLP may have represented the Company in a matter substantially related to such dispute. Buyer and the Company also further agree that, as to all communications prior to Closing among King & Spalding LLP and/or K&L Gates LLP and the Company, Seller or any of their respective Affiliates and representatives relating to the extent such communications concern negotiation, preparation, execution, delivery and performance of the transactions contemplated by this Agreement. The parties furthermore agree that for Transaction Documents or the purposes consummation of the Transactions, the attorney-client privilegeprivilege and the expectation of client confidence belongs to Seller and may be controlled by Seller and shall not pass to or be claimed by Buyer or the Company. Accordingly, any communications between Xxxxxx LLP Buyer and the Company or shall not access such confidential communications after the Sellers that were made Closing. Notwithstanding the foregoing, in the course of negotiating the transactions contemplated by this Agreement event that relate to the subject matter of this Agreement or that may be relevant to any claims for indemnification under this Agreement or any other a dispute arising in connection with the transactions contemplated hereby (“Protected Communications”) shall be deemed privileged communications of the Sellers for the purposes of such claims or disputes, and to the extent that they may not be considered as such at lawarises between Buyer, the parties hereto agree Company and a third party other than a Party after the Closing, the Company may assert the attorney-client privilege to contractually treat prevent disclosure of confidential communications by King & Spalding LLP and/or K&L Gates LLP to such Protected Communications as if they were privileged communications of the Sellersthird party; provided, however, thatthat the Company may not waive such privilege without the prior written consent of Seller (not to be unreasonably withheld, for the avoidance of doubt, the foregoing shall not apply to communications between Xxxxxx LLP and Buyer conditioned or Xxxxxx LLP and Third Security, LLC and its Affiliates in connection with Xxxxxx’x representation of the foregoing Persons, whether in connection with filings required under the Xxxx-Xxxxx-Xxxxxx Act or otherwisedelayed).