Concerning Counsel. (a) Xxxxxxxxx & Xxxxxxx LLP (together, “Counsel”) have acted as counsel for the Seller and PEL (collectively, the “Clients”) in connection with this Agreement and the consummation of the transactions contemplated hereby (collectively, the “Engagement”), and in such matters not as counsel for Purchasers or their respective affiliates. Only the Clients shall be considered clients of Counsel for purposes of the Engagement. From and after the Closing, any and all communications between any of the Clients and Counsel made in the course of or relating to the Engagement shall be deemed to be attorney-client confidences that belong solely to the Seller and PEL and not to the Operating Companies. Purchasers and their respective affiliates (including, after the Closing, the Operating Companies) shall not have access to any such communications, or to the files of Counsel relating to the Engagement. Without limiting the generality of the foregoing, from and after the Closing, (i) the Seller and PEL shall be the sole holders of the attorney-client privilege with respect to the Engagement, and none of the Purchasers, the Operating Companies or any of their respective affiliates shall be a holder thereof, (ii) to the extent that files of Counsel in respect of the Engagement would constitute property of the Operating Companies, only the Seller and PEL shall hold such property rights, and (iii) Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Purchasers, the Operating Companies or any of their respective affiliates by reason of the Engagement or otherwise. (b) If the Seller, PEL and Counsel so desire, and without the need for any Consent or waiver by Purchasers or the Operating Companies, Counsel shall be permitted to represent the Seller and PEL after the Closing in connection with any matter, including anything related to the transactions contemplated hereby or any disagreement or dispute in connection therewith or any other matter relating to the Engagement. Without limiting the generality of the foregoing, after the Closing, Counsel shall be permitted to represent the Seller, PEL, any of their Representatives, or any one or more of them, in connection with any negotiation, transaction or dispute (where “dispute” includes litigation, arbitration or other adversarial proceedings) with the Purchasers, the Operating Companies or any of their Representatives, including indemnification related Claims or any other matter related to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby. The Purchasers, each on behalf of itself and its affiliates, including the Operating Companies, hereby consents to the disclosure to the Seller and PEL and (prior to the Closing) the Operating Companies by Counsel of any information learned by Counsel in the course of its representation of the Clients, whether or not such information is subject to the attorney-client privilege or Counsel’s duty of confidentiality and with respect to the Seller and PEL, whether such disclosure is made before or after the Closing, and irrevocably waives any right it may have to discover or obtain information or documentation relating to the representation of the Clients by Counsel relating to the Engagement. The Purchasers shall not, and from and after the Closing shall cause the Operating Companies not to, assert any Claim against Counsel in respect of legal services provided to the Clients by Counsel except to the extent any such legal services pertained to the Operating Companies or their Business and were relied upon by the Operating Companies.
Appears in 1 contract
Concerning Counsel. (a) Xxxxxxxxx & Xxxxxxx Sidley Austin LLP (together, “Counsel”) have acted as counsel for the has been engaged by Seller to represent Seller and PEL (collectivelyits Subsidiaries, including the “Clients”) Company, in connection with the transactions contemplated hereby. Buyer (on its behalf and on behalf of its Affiliates) hereby (i) agrees that, in the event that a dispute arises after the Closing between Buyer and/or any of its Affiliates, on the one hand, and Seller and/or any of its Affiliates, on the other hand, Counsel may represent Seller and/or any of its Affiliates in such dispute even though the interests of Seller and/or any of its Affiliates may be directly adverse to Buyer and its Affiliates and even though Counsel may have represented the Buyer Affiliates (prior to Closing) in a matter substantially related to such dispute, or may be handling ongoing matters for Buyer or Polycom Companies and (ii) waives any conflict in connection therewith. Buyer (on its behalf and on behalf of its Affiliates) further agrees that, notwithstanding anything in this Agreement to the contrary, as to all communications among Counsel, Seller and the consummation Polycom Companies (including any of their respective directors, officers, employees or other Representatives) (the “Designated Persons”) to the extent relating to this Agreement or the transactions contemplated hereby (collectively, the “Engagement”), and in such matters not as counsel for Purchasers or their respective affiliates. Only the Clients shall be considered clients of Counsel for purposes of the Engagement. From and after the Closing, any and all communications between any of the Clients and Counsel made in the course of or relating are subject to the Engagement shall be deemed to be attorney-client confidences that belong solely to the Seller and PEL and not to the Operating Companies. Purchasers and their respective affiliates (including, after the Closing, the Operating Companies) shall not have access to any such communications, or to the files of Counsel relating to the Engagement. Without limiting the generality of the foregoing, from and after the Closing, (i) the Seller and PEL shall be the sole holders of the attorney-client privilege with respect to the Engagementprivilege, and none the expectation of the Purchasersclient confidence belongs to Seller and shall be controlled by Seller and shall not pass to or be claimed by Buyer, the Operating Polycom Companies or any of their Affiliates; provided, that the foregoing shall not extend to any communication not involving this Agreement or the transactions contemplated hereby, or to communications with any Person other than the Designated Persons and their advisors. Notwithstanding the foregoing, in the event that a dispute arises between Buyer, the Polycom Companies or any of their respective affiliates shall Affiliates and a third party other than a party to this Agreement after the Closing, Buyer may assert (or cause to be a holder thereofasserted) the attorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, (ii) however, that to the extent that files such dispute relates to this Agreement or the transactions contemplated hereby, Buyer may not waive (or permit the waiver of) such privilege without the prior written consent of Counsel in respect of the Engagement would constitute property of the Operating CompaniesSeller (not to be unreasonably withheld, only the Seller and PEL shall hold such property rights, and (iii) Counsel shall have no duty whatsoever to reveal conditioned or disclose any such attorney-client communications or files to the Purchasers, the Operating Companies or any of their respective affiliates by reason of the Engagement or otherwisedelayed).
(b) If the Seller, PEL and Counsel so desire, and without the need for any Consent or waiver Xxxxx & Xxxxxxx LLP (“Buyer’s Counsel”) has been engaged by Purchasers or the Operating Companies, Counsel shall be permitted Buyer to represent Buyer and its Subsidiaries in connection with the transactions contemplated hereby. Seller (on its behalf and PEL on behalf of its Subsidiaries) hereby (i) agrees that, in the event that a dispute arises after the Closing between Buyer and/or any of its Subsidiaries, on the one hand, and Seller and/or any of its Affiliates, on the other hand, Buyer’s Counsel may represent Buyer and/or any of its Subsidiaries in such dispute even though the interests of Buyer and/or any of its Subsidiaries may be directly adverse to Seller and its Affiliates and even though Buyer’s Counsel may have obtained privileged or confidential information relating to Seller and/or any of its Affiliates (prior to Closing) in matters substantially related to such dispute, or may be handling ongoing matters for Seller or Polycom Companies and (ii) waives any conflict in connection therewith.
(c) This Section 7.10 is not intended to, and the Parties hereby agree that it does not, and will not, supersede the provisions of any common interest agreement among the Parties and their respective counsel. This Section is also not intended to, and the Parties hereby agree that it does not, and will not, supersede the provisions of § 259 of the Delaware General Corporation Law with respect to Buyer’s ownership of any matter, including anything privileges or other confidentiality protections related to the transactions contemplated hereby or any disagreement or dispute in connection therewith or any other matter relating to assets which are the Engagement. Without limiting the generality subject of the foregoing, after the Closing, Counsel shall be permitted to represent the Seller, PEL, any of their Representatives, or any one or more of them, in connection with any negotiation, transaction or dispute (where “dispute” includes litigation, arbitration or other adversarial proceedings) with the Purchasers, the Operating Companies or any of their Representatives, including indemnification related Claims or any other matter related to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby. The Purchasers, each on behalf of itself and its affiliates, including the Operating Companies, hereby consents to the disclosure to the Seller and PEL and (prior to the Closing) the Operating Companies by Counsel of any information learned by Counsel in the course of its representation of the Clients, whether or not such information is subject to the attorney-client privilege or Counsel’s duty of confidentiality and with respect to the Seller and PEL, whether such disclosure is made before or after the Closing, and irrevocably waives any right it may have to discover or obtain information or documentation relating to the representation of the Clients by Counsel relating to the Engagement. The Purchasers shall not, and from and after the Closing shall cause the Operating Companies not to, assert any Claim against Counsel in respect of legal services except as specifically provided to the Clients by Counsel except to the extent any such legal services pertained to the Operating Companies or their Business and were relied upon by the Operating Companiesfor herein.
Appears in 1 contract
Concerning Counsel. (a) Xxxxxxxxx Recognizing that Sidley Austin LLP and Potter Axxxxxxx & Xxxxxxx Cxxxxxx LLP (togethercollectively, “Counsel”) have acted as legal counsel for the to Seller and PEL the Acquired Companies (collectively, the “Clients”) for various matters prior to Closing, including in connection with this Agreement and the consummation of the transactions contemplated hereby (collectively, the “EngagementPre-Closing Engagements”), and in such matters that connection not as counsel for Purchasers any other Person, including Buyer or their respective affiliates. Only its Affiliates, only the Clients shall be considered clients of Counsel for purposes of the EngagementPre-Closing Engagements. From and after the Closing, any and all communications between any of the Clients and Counsel made in the course of If Seller or relating to the Engagement shall be deemed to be attorney-client confidences that belong solely to the Seller and PEL and not to the Operating Companies. Purchasers and their respective affiliates (including, after the Closing, the Operating Companies) shall not have access to any such communications, or to the files of Counsel relating to the Engagement. Without limiting the generality of the foregoing, from and after the Closing, (i) the Seller and PEL shall be the sole holders of the attorney-client privilege with respect to the Engagement, and none of the Purchasers, the Operating Companies or any of their respective affiliates shall be a holder thereof, (ii) to the extent that files of Counsel in respect of the Engagement would constitute property of the Operating Companies, only the Seller and PEL shall hold such property rights, and (iii) Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Purchasers, the Operating Companies or any of their respective affiliates by reason of the Engagement or otherwise.
(b) If the Seller, PEL and Counsel its applicable Affiliate so desiredesires, and without the need for any Consent consent or waiver by Purchasers Buyer or the Operating Acquired Companies, Counsel shall be permitted to represent the Seller and PEL after the Closing in connection with any matter, including anything related to the transactions contemplated hereby or any disagreement or dispute in connection therewith or any other matter relating to the a Pre-Closing Engagement. Without limiting the generality of the foregoing, after the Closing, Counsel shall be permitted to represent the Seller, PEL, Seller and any of their its Affiliates or Representatives, or any one or more of them, in connection with any negotiation, transaction or dispute (where “dispute” includes litigation, arbitration or other adversarial proceedings) with the PurchasersBuyer, the Operating Acquired Companies or any of their Representativesrespective Affiliates or Representatives relating to any Pre-Closing Engagements, including indemnification related Claims claims or any other matter related to this Agreement, any Ancillary other Transaction Agreement or the transactions contemplated hereby or thereby. The PurchasersBuyer, each on behalf of itself and its affiliatesAffiliates, including the Operating CompaniesAcquired Companies after the Closing, hereby consents to the disclosure to the Seller and PEL its Affiliates and (prior to the Closing) the Operating Companies Representatives by Counsel of any information learned by Counsel in the course of its representation of the Clients, whether or not such information is subject to the attorney-client privilege or Counsel’s duty of confidentiality and with respect to the Seller and PEL, whether such disclosure is made before or after the Closing.
(b) Buyer, on behalf of itself and its Affiliates (including the Acquired Companies after the Closing), further agrees that all communications in any form or format whatsoever between or among Counsel, Seller or the Acquired Companies, or any of their respective Affiliates or Representatives, that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or any dispute arising under this Agreement (collectively, the “Deal Communications”) shall be deemed to be retained and owned by Seller, shall be controlled by Seller and shall not pass to or be claimed by the Acquired Companies, Buyer or any of their respective Affiliates, and none of the Acquired Companies, Buyer or any of its respective Affiliates shall have access to any such Deal Communications, or to the files of Counsel relating thereto. For the avoidance of doubt, Buyer, on behalf of itself and its Affiliates (including the Acquired Companies after the Closing), further agrees that (i) none of Buyer, the Acquired Companies, or any of their respective Affiliates shall use or rely on any of the Deal Communications in connection with any Action against or involving any of the parties hereto after the Closing and (ii) Seller and any of its Affiliates (excluding the Acquired Companies after the Closing) may use and rely on any of the Deal Communications in connection with any Action against or involving any of the parties hereto after the Closing. Buyer, on behalf of itself and its Affiliates (including the Acquired Companies after the Closing), irrevocably waives and agrees not to assert any right it may have to discover or obtain information or documentation relating to the representation of the Clients by Counsel relating to any Deal Communications or any other matter related to this Agreement, any other Transaction Agreement or the Engagementtransactions contemplated hereby or thereby. The Purchasers shall notWithout limiting the generality of the foregoing, and notwithstanding that the Acquired Companies may be a client in the Pre-Closing Engagements, from and after the Closing Closing, (i) Seller shall cause be the Operating sole holder of the attorney-client privilege with respect to Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) and the expectation of client confidence relating to any Deal Communications, and none of Buyer, the Acquired Companies not toor any of their respective Affiliates shall be a holder thereof, assert any Claim against (ii) to the extent that files of Counsel in respect of the transactions contemplated by this Agreement would constitute property of the Clients, only Seller shall hold such property rights, and (iii) Counsel shall have no duty whatsoever to reveal or disclose any Deal Communications or such files to Buyer, the Acquired Companies or any of their respective Affiliates by reason of any attorney-client relationship between Counsel and the Acquired Companies or otherwise. Notwithstanding the foregoing, if the Acquired Companies, Buyer or any of their respective Affiliates intentionally or inadvertently come into possession of Privileged Deal Communications and in the event that a dispute arises between the Acquired Companies, Buyer or any of their respective Affiliates, on the one hand, and a Third Party other than Seller or any of its Affiliates, on the other hand, the Acquired Companies, Buyer or any of their respective Affiliates may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such Third Party; provided, however, none of Buyer, the Acquired Companies or any of their respective Affiliates may waive such privilege without the prior written consent of Seller. In the event that Buyer, the Acquired Companies or any of their respective Affiliates are legally required by a Governmental Authority or applicable Law or otherwise to access, obtain or disclose a copy of all or a portion of the Deal Communications, Buyer shall cause the Acquired Companies to immediately (and, in any event, within two (2) Business Days of becoming aware of such legal services provided requirement) notify Seller in writing (including by making specific reference to this Section 14.20) so that Seller can seek a protective order and Buyer shall, and shall cause the Acquired Companies and its and their respective Affiliates to, use all commercially reasonable efforts to assist therewith.
(c) Seller on behalf of itself and its Affiliates (including the Acquired Companies prior to the Clients Closing) and Buyer on behalf of itself and its Affiliates (including the Acquired Companies after the Closing) (i) hereby consent to the foregoing arrangements and waive (and agree to cause their respective Affiliates to consent to the foregoing arrangements and to waive) any actual or potential conflict of interest that may be involved in connection with any representation by Counsel except permitted hereunder. Buyer shall not seek or having, and shall cause its Affiliates (including the Acquired Companies after the Closing) to the extent refrain from seeking or having, Counsel disqualified from any such legal services pertained to representation based on the Operating prior representation of the Acquired Companies or their Business and were relied upon by the Operating CompaniesCounsel.
Appears in 1 contract
Samples: Equity Purchase Agreement (Beacon Roofing Supply Inc)
Concerning Counsel. (a) Xxxxxxxxx Each of Sidley Austin LLP and Sheppard, Mullin, Xxxxxxx & Xxxxxxx LLP (togethercollectively, “Counsel”) have has acted as counsel for the Seller and PEL the Acquired Companies (collectively, the “Clients”) for various matters before the Closing, including in connection with this Agreement and the consummation of the transactions contemplated hereby (collectively, the “EngagementPre-Closing Engagements”), and in such matters that connection not as counsel for Purchasers any other Person, including Buyer or their respective affiliatesits Affiliates. Only the Clients shall be considered clients of Counsel for purposes of the EngagementPre-Closing Engagements. From and after the Closing, any and all communications between any of the Clients and Counsel made in the course of or relating to the Engagement Pre-Closing Engagements shall be deemed to be attorney-client confidences that belong solely to the Seller and PEL and not to the Operating Acquired Companies. Purchasers Buyer and their respective affiliates its Affiliates (including, after the Closing, the Operating Acquired Companies) shall not have access to any such communications, or to the files of Counsel relating to the EngagementPre-Closing Engagements. Without limiting the generality of the foregoing, notwithstanding that the Acquired Companies were or are clients in the Pre-Closing Engagements, from and after the Closing, (i) the Seller and PEL shall be the sole holders holder of the attorney-client privilege with respect to the EngagementPre-Closing Engagements, and none of the PurchasersBuyer, the Operating Acquired Companies or any of their respective affiliates Affiliates shall be a holder thereof, (ii) to the extent that files of Counsel in respect of the Engagement Pre-Closing Engagements would constitute property of the Operating Clients (including Seller and the Acquired Companies), only the Seller and PEL shall hold such property rights, and (iii) Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the PurchasersBuyer, the Operating Acquired Companies or any of their respective affiliates Affiliates by reason of any attorney-client relationship between Counsel and the Engagement Acquired Companies or otherwise.
(b) If the Seller, PEL and Counsel Seller so desiredesires, and without the need for any Consent consent or waiver by Purchasers Buyer or the Operating Acquired Companies, Counsel shall be permitted to represent the Seller and PEL after the Closing in connection with any matter, including anything related to the transactions contemplated hereby by this Agreement or any disagreement or dispute in connection therewith or any other matter relating to the a Pre-Closing Engagement. Without limiting the generality of the foregoing, after the Closing, Counsel shall be permitted to represent the Seller, PEL, any of their Representativesits representatives, or any one or more of them, in connection with any negotiation, transaction or dispute (where “dispute” includes litigation, arbitration or other adversarial proceedings) with the PurchasersBuyer, the Operating Companies any Acquired Company or any of their Representativesrepresentatives relating to any Pre-Closing Engagements, including indemnification related Claims claims or any other matter related to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or therebyby this Agreement. The PurchasersBuyer, each on behalf of itself and its affiliatesAffiliates, including the Operating Acquired Companies, hereby consents to the disclosure to the Seller and PEL and (prior to the Closing) the Operating Companies by Counsel of any information learned by Counsel in the course of its representation of the Clients, whether or not such information is subject to the attorney-client privilege or Counsel’s duty of confidentiality and with respect to the Seller and PEL, whether such disclosure is made before or after the Closing, and irrevocably waives any right it may have to discover or obtain information or documentation relating to the representation of the Clients by Counsel relating to the Engagementany Pre-Closing Engagements. The Purchasers Buyer shall not, and from and after the Closing shall cause the Operating Acquired Companies not to, assert any Claim claim against Counsel in respect of legal services provided to the Clients by Counsel.
(c) From and after the Closing, the Acquired Companies shall cease to have any attorney-client relationship with Counsel except relating to the extent any such legal services pertained Pre-Closing Engagements, unless otherwise agreed to in writing by the Parties hereto.
(d) Seller (on behalf of itself and the Acquired Companies) and Buyer consent to the Operating Companies foregoing arrangements and waive any actual or their Business and were relied upon potential conflict of interest that may be involved in connection with any representation by the Operating CompaniesCounsel permitted hereunder.
Appears in 1 contract
Concerning Counsel. (a) 10.17.1 Each of the parties hereto acknowledges and agrees that Xxxxxxxxx & Xxxxxxx Xxxxxxxx LLP (together, “CounselXxxxxxxxx”) have has acted as counsel for the to Seller and PEL ClearLight (together with the Affiliates of Seller, collectively, the “ClientsSeller Parties”) in connection with the negotiation of this Agreement and the consummation of the transactions contemplated hereby (collectively, the “Engagement”), and in such matters not as counsel for Purchasers or their respective affiliates. Only the Clients shall be considered clients of Counsel for purposes of the Engagement. From and after the Closing, any and all communications between any of the Clients and Counsel made in the course of or relating to the Engagement shall be deemed to be attorney-client confidences that belong solely to the Seller and PEL and not to the Operating Companies. Purchasers and their respective affiliates (including, after the Closing, the Operating Companies) shall not have access to any such communications, or to the files of Counsel relating to the Engagement. Without limiting the generality of the foregoing, from and after the Closing, (i) the Seller and PEL shall be the sole holders of the attorney-client privilege with respect to the Engagement, and none of the Purchasers, the Operating Companies or any of their respective affiliates shall be a holder thereof, (ii) to the extent that files of Counsel in respect of the Engagement would constitute property of the Operating Companies, only the Seller and PEL shall hold such property rights, and (iii) Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Purchasers, the Operating Companies or any of their respective affiliates by reason of the Engagement or otherwisehereby.
(b) If the Seller10.17.2 Buyer agrees, PEL and Counsel so desire, and without the need for any Consent or waiver by Purchasers or the Operating Companies, Counsel shall be permitted to represent the Seller and PEL after the Closing in connection with any matter, including anything related to the transactions contemplated hereby or any disagreement or dispute in connection therewith or any other matter relating to the Engagement. Without limiting the generality of the foregoing, after the Closing, Counsel shall be permitted to represent the Seller, PEL, any of their Representatives, or any one or more of them, in connection with any negotiation, transaction or dispute (where “dispute” includes litigation, arbitration or other adversarial proceedings) with the Purchasers, the Operating Companies or any of their Representatives, including indemnification related Claims or any other matter related to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby. The Purchasers, each on behalf of itself and its affiliatesAffiliates, including the Operating Companiesthat all communications in any form or format whatsoever between or among any of Xxxxxxxxx and/or any Seller Party, hereby consents or any of their respective managers, directors, officers employees or other representatives that relate in any way to the disclosure negotiation, documentation and consummation of the transactions contemplated by this Agreement or any dispute arising under this Agreement (collectively, the “Deal Communications”) shall be deemed to be retained and owned collectively by the Seller Parties, shall be controlled by Seller on behalf of the Seller Parties and shall not pass to or be claimed by Buyer or any of its Affiliates. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Seller Parties, shall be controlled by Seller on behalf of the Seller Parties and PEL and (prior shall not pass to or be claimed by Buyer or any of its Affiliates.
10.17.3 Notwithstanding the Closing) the Operating Companies by Counsel of any information learned by Counsel foregoing, in the course of its representation of event that a dispute arises between Buyer or the ClientsAcquired Companies, whether on the one hand, and a third party other than a Seller Party, on the other hand, Buyer or not such information is subject to the Acquired Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such third party; provided, that Buyer or Counsel’s duty the Acquired Companies may not waive such privilege without the prior written consent of confidentiality and with respect Seller, which Seller shall not unreasonably condition, withhold or delay. In the event that Buyer is legally required by governmental order or otherwise to the Seller and PEL, whether such disclosure is made before or after the Closing, and irrevocably waives any right it may have to discover access or obtain information a copy of all or documentation relating to the representation a portion of the Clients by Counsel relating Deal Communications, Buyer shall promptly (and, in any event, within two (2) Business Days) notify Seller in writing so that Seller can seek a protective order and Buyer agrees at the request and expense of Seller to the Engagement. The Purchasers shall not, and from and after the Closing shall cause the Operating Companies not to, assert any Claim against Counsel in respect of legal services provided use its reasonable commercial efforts to the Clients by Counsel except to the extent any such legal services pertained to the Operating Companies or their Business and were relied upon by the Operating Companiesassist therewith.
Appears in 1 contract
Samples: Stock Purchase Agreement (AquaVenture Holdings LTD)
Concerning Counsel. (a) Xxxxxxxxx & Xxxxxxx Recognizing that Sidley Austin LLP (together, “Counsel”) have has acted as legal counsel for the to Seller and PEL the Acquired Companies (collectively, the “Clients”) for various matters prior to Closing, including in connection with this Agreement and the consummation of the transactions contemplated hereby (collectively, the “EngagementPre-Closing Engagements”), and in such matters that connection not as counsel for Purchasers any other Person, including Buyer or their respective affiliates. Only its Affiliates, only the Clients shall be considered clients of Counsel for purposes of the EngagementPre-Closing Engagements. From and after the Closing, any and all communications between any of the Clients and Counsel made in the course of If Seller or relating to the Engagement shall be deemed to be attorney-client confidences that belong solely to the Seller and PEL and not to the Operating Companies. Purchasers and their respective affiliates (including, after the Closing, the Operating Companies) shall not have access to any such communications, or to the files of Counsel relating to the Engagement. Without limiting the generality of the foregoing, from and after the Closing, (i) the Seller and PEL shall be the sole holders of the attorney-client privilege with respect to the Engagement, and none of the Purchasers, the Operating Companies or any of their respective affiliates shall be a holder thereof, (ii) to the extent that files of Counsel in respect of the Engagement would constitute property of the Operating Companies, only the Seller and PEL shall hold such property rights, and (iii) Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Purchasers, the Operating Companies or any of their respective affiliates by reason of the Engagement or otherwise.
(b) If the Seller, PEL and Counsel its applicable Affiliate so desiredesires, and without the need for any Consent consent or waiver by Purchasers Buyer or the Operating Acquired Companies, Counsel shall be permitted to represent the Seller and PEL after the Closing in connection with any matter, including anything related to the transactions contemplated hereby or any disagreement or dispute in connection therewith or any other matter relating to the a Pre-Closing Engagement. Without limiting the generality of the foregoing, after the Closing, Counsel shall be permitted to represent the Seller, PEL, Seller and any of their its Affiliates or Representatives, or any one or more of them, in connection with any negotiation, transaction or dispute (where “dispute” includes litigation, arbitration or other adversarial proceedings) Dispute with the PurchasersBuyer, the Operating Acquired Companies or any of their Representativesrespective Affiliates or Representatives relating to any Pre-Closing Engagements, including indemnification related Claims claims or any other matter related to this Agreement, any Ancillary other Transaction Agreement or the transactions contemplated hereby or thereby. The PurchasersBuyer, each on behalf of itself and its affiliatesAffiliates, including the Operating Acquired Companies, hereby consents to the disclosure to the Seller and PEL its Affiliates and (prior to the Closing) the Operating Companies Representatives by Counsel of any information learned by Counsel in the course of its representation of the Clients, whether or not such information is subject to the attorney-client privilege or Counsel’s duty of confidentiality and with respect to the Seller and PEL, whether such disclosure is made before or after the Closing.
(b) Buyer, on behalf of itself and its Affiliates further agrees that all communications in any form or format whatsoever between or among Counsel, Seller or the Acquired Companies, or any of their respective Affiliates or Representatives, that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or any dispute arising under this Agreement (collectively, the “Deal Communications”) shall be deemed to be retained and owned by Seller, shall be controlled by Seller and shall not pass to or be claimed by the Acquired Companies, Buyer or any of their respective Affiliates, and none of the Acquired Companies, Buyer or any of its respective Affiliates shall have access to any such Deal Communications, or to the files of Counsel relating thereto. Buyer, on behalf of itself and its Affiliates (including the Acquired Companies) irrevocably waives any right it may have to discover or obtain information or documentation relating to the representation of the Clients by Counsel relating to any Deal Communications or any other matter related to this Agreement, any other Transaction Agreement or the Engagementtransactions contemplated hereby or thereby. The Purchasers shall notWithout limiting the generality of the foregoing, and notwithstanding that the Acquired Companies may be a client in the Pre-Closing Engagements, from and after the Closing Closing, (i) Seller shall cause be the Operating sole holder of the attorney-client privilege with respect to Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) and the expectation of client confidence relating to any Deal Communications, and none of Buyer, the Acquired Companies not toor any of their respective Affiliates shall be a holder thereof (provided that, assert with respect to any Claim against Third Party claim, Seller shall provide reasonable cooperation to allow Buyer and its Affiliates the benefit of any applicable Privileged Deal Communications), (ii) to the extent that files of Counsel in respect of legal services provided the transactions contemplated by this Agreement would constitute property of the Clients, only Seller shall hold such property rights, and (iii) Counsel shall have no duty whatsoever to reveal or disclose any Deal Communications or such files to Buyer, the Acquired Companies or any of their respective Affiliates by reason of any attorney-client relationship between Counsel and the Acquired Companies or otherwise. Notwithstanding the foregoing, if the Acquired Companies, Buyer or any of their respective Affiliates unintentionally or inadvertently come into possession of Privileged Deal Communications and in the event that a dispute arises between the Acquired Companies, Buyer or any of its respective Affiliates, on the one hand, and a Third Party other than Seller or any of its Affiliates, on the other hand, the Acquired Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such Third Party. In the event that Buyer, the Acquired Companies or any of their respective Affiliates are legally required by a Governmental Authority or applicable Law or otherwise to access, obtain or disclose a copy of all or a portion of the Deal Communications, Buyer shall cause the Acquired Companies to, as promptly as reasonably possible, notify Seller in writing so that the Seller can seek (at its sole expense) a protective order and Buyer shall, and shall cause the Acquired Companies and its Affiliates to, use commercially reasonable efforts to assist therewith.
(c) Seller on behalf of itself and its Affiliates (including the Acquired Companies prior to the Clients Closing) and Buyer on behalf of itself and its Affiliates (including the Acquired Companies after the Closing) (i) hereby consent to the foregoing arrangements and waive (and agree to cause their respective Affiliates) any actual or potential conflict of interest that may be involved in connection with any representation by Counsel except permitted hereunder. Buyer shall not seek or having, and shall cause its Affiliates (including the Acquired Companies after the Closing) to the extent refrain from seeking or having, Counsel disqualified from any such legal services pertained to representation based on the Operating prior representation of the Acquired Companies or their Business and were relied upon by the Operating CompaniesCounsel.
Appears in 1 contract
Samples: Equity Purchase Agreement (Navigant Consulting Inc)
Concerning Counsel. (a) Xxxxxxxxx & Xxxxxxx Sidley Austin LLP (together, “Counsel”) have has acted as counsel for Sellers and the Seller and PEL Company (collectively, the “Clients”) in connection with this Agreement and the consummation of the transactions contemplated hereby Transaction (collectively, the “Transaction Engagement”), and in such matters that regard not as counsel for Purchasers any other Person, including the Buyers or their respective affiliatesAffiliates. Only the Clients shall be considered clients of Counsel for purposes of the Transaction Engagement. From and after the Closing, any and all communications between any of the Clients and Counsel made in the course of or relating to the Transaction Engagement shall be deemed to be attorney-client confidences that belong solely to the Seller and PEL Sellers and not to the Operating CompaniesCompany. Purchasers The Buyers and their respective affiliates Affiliates (including, after the Closing, the Operating CompaniesCompany) shall not have access to any such communications, or to the files of Counsel relating to the Transaction Engagement. Without limiting the generality of the foregoing, from and after the Closing, (i) the Seller and PEL Sellers shall be the sole holders of the attorney-client privilege with respect to the Transaction Engagement, and none of the PurchasersBuyers, the Operating Companies Company or any of their respective affiliates Affiliates shall be a holder thereof, provided, that, the Sellers agree to reasonably preserve and protect all documents, materials and information protected by such attorney-client privilege and shall not waive or otherwise disclose any such documents, materials and information unless and only to the extent required by Law, (ii) to the extent that files of Counsel in respect of the Transaction Engagement would constitute property of the Operating CompaniesClients (including Sellers and the Company), only the Seller and PEL Sellers shall hold such property rights, and (iii) Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the PurchasersBuyers, the Operating Companies Company or any of their respective affiliates Affiliates by reason of any attorney-client relationship between Counsel and the Engagement Company or otherwise.
(b) If the Seller, PEL and Counsel Sellers so desire, and without the need for any Consent consent or waiver by Purchasers the Buyers, the Company or the Operating Companiesany of their respective Affiliates, Counsel shall be permitted to represent the Seller and PEL Sellers after the Closing in connection with any matter, including anything related to the transactions contemplated hereby Transactions or any disagreement or dispute in connection therewith or any other matter relating to the Engagementmatter. Without limiting the generality of the foregoing, after the Closing, Counsel shall be permitted to represent the Seller, PELSellers, any of their Representatives, or any one or more of them, in connection with any negotiation, transaction or dispute (where “dispute” includes including any litigation, arbitration or other adversarial proceedingsproceeding) with the PurchasersBuyers, the Operating Companies Company or any of their respective Affiliates or any of their Representatives, including indemnification related Claims claims or any other matter related to this Agreement, any Ancillary Transaction Agreement or the transactions contemplated hereby or therebyTransaction. The Purchasers, each on behalf of itself and its affiliates, including the Operating Companies, hereby consents to the disclosure to the Seller and PEL and (prior to the Closing) the Operating Companies by Counsel of any information learned by Counsel in the course of its representation of the Clients, whether or not such information is subject to the attorney-client privilege or Counsel’s duty of confidentiality and with respect to the Seller and PEL, whether such disclosure is made before or after the Closing, and irrevocably waives any right it may have to discover or obtain information or documentation relating to the representation of the Clients by Counsel relating to the Engagement. The Purchasers Buyers shall not, and from and after the Closing shall cause the Operating Companies Company not to, assert any Claim claim against Counsel in respect of legal services provided to the Clients by Counsel.
(c) From and after the Closing, the Company shall cease to have any attorney-client relationship with Counsel except relating to the extent any such legal services pertained Transaction Engagement, unless otherwise agreed to in writing by the Parties hereto.
(d) Sellers (on behalf of themselves and the Company) and the Buyers consent to the Operating Companies foregoing arrangements and waive any actual or their Business and were relied upon potential conflict of interest that may be involved in connection with any representation by the Operating CompaniesCounsel permitted hereunder.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Intl Fcstone Inc.)