Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub hereby agree that, in the event that a dispute arises after the Closing between the Acquiror and Sub and the Stockholder Representatives, Counsel may represent the Stockholder Representatives in such dispute even though the interests of the Stockholder Representatives may be directly adverse to the Acquiror, Sub, the Company or its Subsidiaries, and even though Counsel may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries and the Stockholder Representatives that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitor-client privilege and the expectation of client confidence belongs to the Stockholder Representatives and may be controlled by the Stockholder Representatives and shall not pass to or be claimed by the Acquiror, Sub, the Company or its Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, the Company or its Subsidiaries and a third party other than a party to this Agreement after the Closing, the Company and its Subsidiaries may assert the attorney or solicitor-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its Subsidiaries may waive such privilege without the prior written consent of the Stockholder Representatives.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Infospace Inc), Merger Agreement (H&r Block Inc)
Conflicts and Privilege. It is acknowledged by (a) The parties agree that, notwithstanding the fact that Eversheds Sutherland (US) LLP and Xxxxxxxx Xxxxxxxx & Schole LLP (together, the “Company Law Firms”) may have, prior to the Closing, jointly represented the Company, the Sellers Representative and the Sellers in connection with this Agreement, the Transaction Documents and the Transactions, and have also represented the Company and/or its affiliates in connection with matters other than the Transactions, each of Company Law Firm will be permitted in the parties hereto that future, after the Stockholder Representatives may retain existing special counsel Closing, to represent the Sellers Representative, the Sellers or their respective affiliates in connection with matters in which such persons are adverse to the Company (“Counsel”) or any of its affiliates, including any disputes arising out of, or related to, this Agreement. Each of SPAC and OpCo, who is or has the right to act as its be represented by independent counsel in connection with the transactions contemplated herebyTransactions, hereby agrees, in advance, to waive (and to cause its affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with either Company Law Firm’s future representation of one or more of the Sellers Representative, the Sellers or their respective affiliates in which the interests of such person are adverse to the interests of SPAC, OpCo and/or the Company or any of their respective affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by a Company Law Firm of the Company, the Sellers Representative, the Sellers or any of their respective affiliates. The Acquiror parties acknowledge and Sub hereby agree that, in for the event that a dispute arises purposes of the attorney-client privilege, the Sellers Representative and the Sellers shall be deemed the clients of each Company Law Firm with respect to the negotiation, execution and performance of the Transaction Documents. All such communications shall remain privileged after the Closing between the Acquiror and Sub and the Stockholder Representatives, Counsel may represent the Stockholder Representatives in such dispute even though the interests of the Stockholder Representatives may be directly adverse to the Acquiror, Sub, the Company or its Subsidiaries, and even though Counsel may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries and the Stockholder Representatives that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitor-client privilege and the expectation of client confidence belongs relating thereto shall belong solely to the Stockholder Representatives Sellers Representative and may the Sellers, shall be controlled by the Stockholder Representatives Sellers Representative and the Sellers and shall not pass to or be claimed by the AcquirorSPAC, Sub, OpCo or the Company or its the Company Subsidiaries. Notwithstanding the foregoing; provided, in the event further, that nothing contained herein shall be deemed to be a dispute arises between the Acquiror, Sub, waiver by the Company or any of its Subsidiaries affiliates (including, after the Closing, SPAC, OpCo and a their respective affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party party.
(b) The parties agree that, notwithstanding the fact that Xxxxxxxx & Xxxxx LLP (the “SPAC Law Firm”) may have, prior to the Closing, represented SPAC, OpCo or Sponsor in connection with this Agreement, the Transaction Documents and the Transactions, and have also represented SPAC and/or its affiliates in connection with matters other than a party the Transactions, the SPAC Law Firm will be permitted in the future, after the Closing, to represent Sponsor, Energy Spectrum or their respective affiliates in connection with matters in which such persons are adverse to SPAC or any of its affiliates, including any disputes arising out of, or related to, this Agreement. The Company and each Seller, who is or has the right to be represented by independent counsel in connection with the Transactions, hereby agrees, in advance, to waive (and to cause its affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with SPAC Law Firm’s future representation of one or more of the Sponsor, Energy Spectrum or their respective affiliates in which the interests of such person are adverse to the interests of SPAC, OpCo and/or the Company or any of their respective affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by the SPAC Law Firm of SPAC, OpCo, Sponsor or any of their respective affiliates. The parties acknowledge and agree that, for the purposes of the attorney-client privilege, Sponsor and Energy Spectrum shall be deemed the clients of the SPAC Law Firm with respect to the negotiation, execution and performance of the Transaction Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, OpCo or the Company or the Company Subsidiaries; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its affiliates (including, after the Closing, the Company and its Subsidiaries respective affiliates) of any applicable privileges or protections that can or may assert the attorney or solicitor-client privilege be asserted to prevent disclosure of confidential any such communications by Counsel to such any third party; provided, however, that neither the Company nor its Subsidiaries may waive such privilege without the prior written consent of the Stockholder Representatives. [Signature Page Follows.]
Appears in 2 contracts
Samples: Business Combination Agreement (ESGEN Acquisition Corp), Business Combination Agreement (ESGEN Acquisition Corp)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company Sellers’ Representative has retained Dxxxx Xxxxxx LLP (“CounselDM”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub Buyer hereby agree that, agrees that in the event that of a dispute under this Agreement, the Ancillary Documents and the documents and instruments contemplated hereby and thereby related to the transactions contemplated hereby or thereby that arises after the Closing between Buyer Indemnified Parties, on the Acquiror and Sub one hand, and the Stockholder RepresentativesSellers’ Representative and Sellers, Counsel on the other hand, DM may represent the Stockholder Representatives Sellers’ Representative and/or Sellers in such dispute even though the interests of the Stockholder Representatives Sellers’ Representative and/or Sellers may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesBuyer Indemnified Parties, and even though Counsel DM may have represented the Company or its Subsidiaries in a matter substantially related to such dispute; provided, however, this sentence shall not apply if and to the extent (a) DM is then representing the Buyer Indemnified Parties and (b) such representation of such member of the Buyer Indemnified Parties would require DM to either refrain from representing the Sellers’ Representative and/or Sellers or may be handling ongoing matters for obtain the Acquiror, Sub, informed consent of the Company Sellers’ Representative and/or Sellers and the applicable member of the Buyer Indemnified Parties under applicable Laws or its Subsidiariesapplicable ethical standards governing attorney conduct. Acquiror and Sub Buyer further agree agrees that, as to all communications among CounselDM, the Company, its Subsidiaries and the Stockholder Representatives Sellers’ Representative and/or any Seller that relate in any way to the transactions contemplated by this Agreementhereby or a similar transaction prior to the Closing (the “Protected Communications”), the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs with respect to the Stockholder Representatives Protected Communications (the “Associated Rights”) belong to the Sellers’ Representative and Sellers and may be controlled by the Stockholder Representatives Sellers’ Representative and Sellers and shall not pass to or be claimed by the Acquiror, SubBuyer, the Company (after Closing) or any of their Subsidiaries; provided, however, the parties hereto expressly agree that the Protected Communications and Associated Rights shall not include any communications at or prior to the Closing among DM, the Company, the Sellers’ Representative and/or any Seller: (i) relating to (A) the pre-Closing operation by the Company of its Subsidiariesbusiness other than the negotiation of the transactions contemplated hereby or a similar transaction prior to the Closing or (B) Fraud (whether related to the negotiation of the transactions contemplated hereby or a similar transaction prior to the Closing or otherwise); or (ii) with respect to which the attorney-client privilege could not validly be asserted by the Company prior to the Closing. Notwithstanding the foregoing, (x) in the event that a dispute arises between Buyer Indemnified Parties, on the Acquirorone hand, Sub, the Company or its Subsidiaries and a third party other than the Sellers’ Representative or a party to this Agreement after Seller, on the Closingother hand, the Company and its Subsidiaries Buyer Indemnified Parties may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its Subsidiaries Buyer Indemnified Parties may not waive such privilege without the prior written consent of the Stockholder RepresentativesSellers’ Representative and (y) if Buyer is legally required by order of a Governmental Authority to access or obtain a copy of all or a portion of the Protected Communications, Buyer shall be entitled to access or obtain a copy of and disclose the Protected Communications to the extent necessary to comply with any such order.
Appears in 1 contract
Samples: Stock Purchase Agreement (Home Treasure Finders, Inc.)
Conflicts and Privilege. It is acknowledged by each Each of the parties hereto Parties acknowledges and agrees that the Stockholder Representatives may retain existing special counsel to the Company Steptoe & Xxxxxxx LLP and The Law Office of Xxxxx Xxxxxx PC (collectively, “Counsel”) have acted as counsel to act as its counsel Company, Company Subsidiary, Seller, the Non-Target Parties and each of the shareholders of Seller in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby. The Acquiror .
(a) Buyer hereby consents and Sub hereby agrees to, and agrees to cause, Company and Company Subsidiary to consent and agree thatto, in Counsel representing Seller, the event that a dispute arises Trusts (including, without limitation, their respective trustees and beneficiaries) and/or any of the Non-Target Parties (collectively, the “Seller Parties”) after the Closing between the Acquiror and Sub and the Stockholder RepresentativesClosing, Counsel may represent the Stockholder Representatives including, without limitation, with respect to disputes in such dispute even though which the interests of the Stockholder Representatives Seller Parties may be directly adverse to the Acquiror, Sub, the Buyer and its subsidiaries (including Company or its SubsidiariesCompany Subsidiary). In connection with the foregoing, Buyer hereby irrevocably waives and agrees not to assert, and even though agrees to cause Company to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Counsel’s prior representation of Company and Company Subsidiary and (ii) Counsel’s representation of the Seller Parties prior to and after the Closing, including the communication by Counsel may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries and the Stockholder Representatives that relate in any way to the transactions contemplated by Seller Parties in connection with any such representation. Notwithstanding the foregoing, this consent and waiver of the right to assert any conflict of interest is solely limited to matters arising in connection with the negotiation and documentation of this Agreement, the attorney or solicitorRelated Agreements and the transactions contemplated hereby and thereby. Nothing in this Section 9.12 shall constitute a waiver of any attorney-client privilege or any privilege associated with Company or Company Subsidiary on any matter (other than Counsel’s representation of Company or Company Subsidiary in connection with this Agreement, the Related Agreements, and the expectation transactions contemplated hereby and thereby, in a manner that would not materially prejudice Company’s or Company Subsidiary’s rights and obligations vis a vis third parties), and does not waive or excuse Counsel from complying with applicable rules of professional conduct regarding the confidentiality of any client confidence belongs information of Company or Company Subsidiary other than as it pertains to Counsel’s representation of Company or Company Subsidiary in connection with this Agreement, the Stockholder Representatives Related Agreements and the transactions contemplated hereby and thereby.
(b) In addition, all communications involving attorney-client confidences between Company, Company Subsidiary, Non-Target Parties, Seller or the Trusts (including their respective trustees and beneficiaries), on the one hand, and Counsel, on the other hand, in the course of the negotiation and documentation of this Agreement and the Related Agreements shall be deemed to be attorney-client confidences that belong solely to Seller and the Trusts (and not Company or Company Subsidiary) and may be controlled by Seller and the Stockholder Representatives and shall not pass to or be claimed by Trusts. Without limiting the Acquiror, Sub, the Company or its Subsidiaries. Notwithstanding generality of the foregoing, in the event that a dispute arises between the Acquiror, Sub, the Company or its Subsidiaries upon and a third party other than a party to this Agreement after the Closing, Seller, the Trusts and their Affiliates (and not Company and its Subsidiaries may assert or Company Subsidiary) shall be the attorney or solicitorsole holders of the attorney-client privilege with respect to prevent disclosure the negotiation and documentation of confidential communications by Counsel to such third party; providedthis Agreement and the Related Agreements, however, that and neither the Company nor its Subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesCompany Subsidiary shall be a holder thereof.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Everbridge, Inc.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to Company and the Company Stockholders have retained Xxxxxxxx Xxxxx LLP (“CounselFillmore”) to act as its their counsel in connection with the transactions contemplated hereby. The Acquiror and Sub Buyer hereby agree agrees that, in the event that a dispute arises after the Closing between the Acquiror Buyer and Sub its Subsidiaries (including the Company and its Subsidiaries) on the one hand, and the Stockholder RepresentativesStockholders and/or the Stockholders’ Representative on the other hand, Counsel relating to the transactions contemplated by this Agreement, Fillmore may represent the Stockholder Representatives Stockholders and Stockholders’ Representative in such dispute even though the interests of the Stockholder Representatives Stockholders and Stockholders’ Representative may be directly adverse to the Acquiror, Sub, the Company or Buyer and its Subsidiaries, and even though Counsel Fillmore may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company or its Subsidiaries. Acquiror and Sub The Buyer further agree agrees that, as to all communications among CounselFillmore, the Company, its Subsidiaries and/or the Stockholders and the Stockholder Representatives Stockholders’ Representative that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Stockholders and may be controlled by the Stockholder Representatives Stockholders’ Representative and shall not pass to or be claimed by the Acquiror, Sub, Buyer or any of its Subsidiaries (including the Company or and its Subsidiaries) (except to prevent disclosure to any third party). Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubBuyer, the Company or and its Subsidiaries on the one hand and a third party other than a party to this Agreement after the ClosingStockholders or Stockholders’ Representative on the other hand, the Buyer, the Company and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Buyer, the Company nor or its Subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesStockholders’ Representative (which consent shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives Securityholders’ Representative may retain existing special counsel to the Company Fenwick & West LLP (“CounselFenwick”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror Buyer and Sub Merger Subs hereby agree that, that in the event that a dispute under this Agreement related to the transactions contemplated hereby arises after the Closing between Buyer and its subsidiaries, on the Acquiror and Sub one hand, and the Stockholder RepresentativesSecurityholders’ Representative and the Company Securityholders, Counsel on the other hand, Fenwick may represent the Stockholder Representatives Securityholders’ Representative and/or Company Securityholders in such dispute even though the interests of the Stockholder Representatives Securityholders’ Representative and/or Company Securityholders may be directly adverse to the Acquiror, Sub, the Company or Buyer and its Subsidiariessubsidiaries, and even though Counsel Fenwick may have represented the Company or its Subsidiaries in a matter substantially related to such dispute; provided, however, this sentence shall not apply if and to the extent (a) Fenwick is then representing Buyer, Merger Subs, or may be handling ongoing matters for any of their respective Affiliates or any successor or assign of any of the Acquiror, Subforegoing (collectively, the “Buyer Group”) and (b) such representation of such member of the Buyer Group would require Fenwick to either refrain from representing the Securityholders’ Representative and/or Company Securityholders or its Subsidiariesobtain the informed consent of the Securityholders’ Representative and/or Company Securityholders and the applicable member of the Buyer Group under applicable Law or applicable ethical standards governing attorney conduct. Acquiror Buyer and Sub Merger Subs further agree that, as to all communications among Counsel, the Company, its Subsidiaries Fenwick and the Stockholder Representatives Company that relate in any way to the transactions contemplated by this Agreementhereby prior to the Closing (the “Protected Communications”), the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs with respect to the Stockholder Representatives Protected Communications (the “Associated Rights”) belong to the Securityholders’ Representative and the Company Securityholders and may be controlled by the Stockholder Representatives Securityholders’ Representative and Company Securityholders and shall not pass to or be claimed by the AcquirorBuyer, SubMerger Subs, the Final Surviving Entity or any of its subsidiaries; provided, however, the Parties expressly agree that the Protected Communications and Associated Rights shall not include any communications at or prior to the Closing among Fenwick and the Company: (i) relating to Fraud (whether related to the negotiation of the transactions contemplated hereby or a similar transaction prior to the Closing or otherwise); or (ii) with respect to which the attorney-client privilege could not validly be asserted by the Company or its Subsidiariesprior to the Closing. Notwithstanding the foregoing, (x) in the event that a dispute arises between the Acquiror, SubBuyer, the Company or its Subsidiaries Final Surviving Entity, on the one hand, and a third party other than the Securityholders’ Representative or a party to this Agreement after Company Securityholder, on the Closingother hand, Buyer, the Company Final Surviving Entity and its Subsidiaries subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither Buyer, the Company nor Final Surviving Entity or its Subsidiaries subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesSecurityholders’ Representative and (y) if Buyer is legally required by judgment, order or decree of a Governmental Authority to access or obtain a copy of all or a portion of the Protected Communications, Buyer shall be entitled to access or obtain a copy of and disclose the Protected Communications to the extent necessary to comply with any such judgment, order or decree.
Appears in 1 contract
Conflicts and Privilege. It From and after the Closing Date, it is acknowledged by each of the parties hereto possible that the Stockholder Representatives may retain existing special counsel to the Company XxXxxxxx Xxxxxxxxx LLP. (“Company Counsel”) to act as its counsel will represent Sellers, Real Property Owners or other related Persons (individually and collectively, the “Seller Group”), in connection with the transactions contemplated hereby. The Acquiror and Sub hereby agree thatEscrow Amount, in the event that a dispute arises after the Closing between the Acquiror and Sub and the Stockholder Representatives, Counsel may represent the Stockholder Representatives in such dispute even though the interests of the Stockholder Representatives may be directly adverse to the Acquiror, Sub, the Company or its Subsidiaries, and even though Counsel may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries and the Stockholder Representatives that relate in any way to the transactions contemplated by herein or in the Escrow Agreement, and any claims made pursuant to this Agreement, the attorney Escrow Agreement or solicitorother Transaction Documents. Buyers and the Companies hereby agree that Company Counsel (or any successor thereof) may represent the Seller Group in the future to the extent related directly to issues that may arise under this Agreement, the Escrow Agreement, the Transition Services Agreement, the Leases, the other Transaction Documents, the administration of the Escrow Amount, and any claims that may be made thereunder pursuant to this Agreement, the Escrow Agreement, or the other Transaction Documents (“Indemnification Matters”). As to all privileged communications prior to the Closing Date between or among Company Counsel, Sellers or the Companies to the extent directly related to the Indemnification Matters, the attorney-client privilege and the expectation of client confidence belongs to with the Stockholder Representatives and may be controlled by the Stockholder Representatives and Companies shall not pass to or be claimed by the Acquiror, Sub, the Company or its Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, the Company or its Subsidiaries and a third party other than a party to this Agreement after the Closing, the Company and its Subsidiaries may assert the attorney or solicitor-client privilege to prevent disclosure of confidential communications by Counsel to such third partyor limit Company Counsel’s representation hereunder; provided, however, that neither the Company Companies nor its Subsidiaries may Buyers waive such privilege without the prior written consent attorney-client privilege. Company Counsel (or any successor thereof) may serve as counsel to all or a portion of the Stockholder Representatives.Seller Group or any member, manager, partner, officer, employee, representative, or Affiliate of the Seller Group in connection with of the Indemnification Matters; provided that in connection with the representation of Seller Group in any Indemnification Matter, no Company Counsel attorney will take any action that would reasonably be expected to jeopardize or waive attorney-client privilege or any other privilege of Buyers, the Companies, or any of their respective Affiliates. Buyers and the Companies each consent to such representation, and acknowledges that such consent voluntary. 66 Capital Pumping
Appears in 1 contract
Samples: Interest Purchase Agreement (Concrete Pumping Holdings, Inc.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives Securityholder Representative may retain existing special counsel to the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror Parent and Merger Sub hereby agree that, in the event that a dispute arises after the Closing between the Acquiror Parent and Merger Sub and the Stockholder RepresentativesSecurityholder Representative, Counsel may represent the Stockholder Representatives Securityholder Representative in such dispute even though the interests of the Stockholder Representatives Securityholder Representative may be directly adverse to the AcquirorParent, Merger Sub, the Company or its Subsidiaries, and even though Counsel may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the AcquirorParent, Merger Sub, the Company or its Subsidiaries. Acquiror Parent and Merger Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries and the Stockholder Representatives Securityholder Representative that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitor-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Securityholder Representative and may be controlled by the Stockholder Representatives Securityholder Representative and shall not pass to or be claimed by the AcquirorParent, Merger Sub, the Company or its Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the AcquirorParent, Merger Sub, the Company or its Subsidiaries and a third party other than a party to this Agreement after the Closing, the Company and its Subsidiaries may assert the attorney or solicitor-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its Subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesSecurityholder Representative.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to ACAS, ACEI, ACEII, the Company and the Securityholder Representative have retained PB and Axxxxx & Pxxxxx LLP (“CounselAP”) to act as its their counsel in connection with the transactions contemplated herebyhereby and that neither PB nor AP has acted as counsel for any other party in connection with the transactions contemplated hereby and that none of the other parties has the status of a client of PB or AP for conflict of interest or any other purposes as a result thereof. The Acquiror and Sub Buyer hereby agree agrees that, in the event that a dispute arises after the Closing between the Acquiror and Sub and Buyer, ACAS, ACEI, ACEII or the Stockholder RepresentativesSecurityholder Representative, Counsel PB or AP may represent ACAS, ACEI, ACEII or the Stockholder Representatives Securityholder Representative in such dispute even though the interests of ACAS, ACEI, ACEII or the Stockholder Representatives Securityholder Representative may be directly adverse to Buyer, the Acquiror, Subother Securityholders, the Company or its the Subsidiaries, and even though Counsel PB or AP, as applicable, may have represented the Company or its the Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, SubBuyer, the Company or its the Subsidiaries. Acquiror and Sub The Buyer further agree agrees that, as to all communications among Counsel, PB or AP and the Company, its Subsidiaries and any Subsidiary, ACAS, ACEI, ACEII and/or the Stockholder Representatives Securityholder Representative that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Securityholder Representative and may be controlled by the Stockholder Representatives Securityholder Representative and shall not pass to or be claimed by the Acquiror, SubBuyer, the Company or its Subsidiariesany Subsidiary. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubBuyer, the Company or its Subsidiaries any Subsidiary and a third party other than a party to this Agreement after the Closing, the Company and its Subsidiaries or such Subsidiary may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel PB or AP to such third party; provided, however, that neither the Company nor its Subsidiaries such Subsidiary may waive such privilege without the prior written consent of PB or AP, as applicable. Each of PB and AP is an intended third party beneficiary of this Section 8.06 and shall be entitled to rely on the Stockholder Representativesprovisions hereof.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of The Parent and the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub Surviving Corporation hereby agree that, in the event that a dispute arises after the Closing between Parent or the Acquiror and Sub Surviving Corporation or any Company Subsidiary and the Stockholder RepresentativesSecurityholders’ Representative (or any Company Securityholder), Counsel Winston & Xxxxxx LLP may represent the Stockholder Representatives Securityholders’ Representative or the Company Securityholder in such dispute even though the interests of the Stockholder Representatives Securityholders’ Representative or the Company Securityholder may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesCompany, and even though Counsel Winston & Xxxxxx LLP may have represented the Company or its Subsidiaries a Company Subsidiary in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, SubSurviving Corporation or its Affiliates. Parent, the Securityholders’ Representative and the Company or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Counselbetween Winston & Xxxxxx LLP, the Company, its Subsidiaries the Securityholders’ Representative and the Stockholder Representatives Company Securityholders that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Securityholders’ Representative and the Company Securityholders and may be controlled by the Stockholder Representatives Securityholders’ Representative and the Company Securityholders, and shall not pass to or be claimed or controlled by the Acquiror, Sub, Surviving Corporation or Parent; provided that neither the Securityholders’ Representative nor the Company Securityholders shall waive such attorney-client privilege other than to the extent appropriate in connection with the enforcement or its Subsidiariesdefense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, Parent or the Company or its Subsidiaries and a third party Person other than the Securityholders’ Representative or a party to this Agreement Company Securityholder after the Closing, the Company and its Subsidiaries Surviving Corporation may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel Winston & Xxxxxx LLP to such third partyPerson; provided, however, that neither the Company nor its Subsidiaries Surviving Corporation may not waive such privilege without the prior written consent of the Stockholder RepresentativesSecurityholders’ Representative, which consent will not be unreasonably withheld.
Appears in 1 contract
Samples: Merger Agreement (Par Pharmaceutical Companies, Inc.)
Conflicts and Privilege. It is acknowledged by each of Buyer, the parties hereto that the Stockholder Representatives may retain existing special counsel to Shareholders and the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub hereby agree that, in the event that a dispute arises after the Closing between Buyer or the Acquiror and Sub Company and the Stockholder RepresentativesShareholders Agent or the Shareholders, Counsel Xxxxxx & Xxxxxx L.L.P. may represent the Stockholder Representatives Shareholders Agent or the Shareholders in such dispute even though the interests of the Stockholder Representatives Shareholders Agent or the Shareholders may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesCompany, and even though Counsel Xxxxxx & Xxxxxx L.L.P. may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company or its Subsidiaries. Acquiror Buyer, the Shareholders Agent, the Shareholders and Sub the Company further agree that, as to all communications among Counselbetween Xxxxxx & Xxxxxx L.L.P., the Company, its Subsidiaries the Shareholders Agent and the Stockholder Representatives Shareholders that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Shareholders Agent and the Shareholders and may be controlled by the Stockholder Representatives Shareholders Agent and the Shareholders, and shall not pass to or be claimed or controlled by the Acquiror, Sub, Company; provided that neither the Company Shareholders Agent nor the Shareholders shall waive such attorney-client privilege other than to the extent appropriate in connection with the enforcement or its Subsidiariesdefense of their respective rights or obligations existing under this Agreement and the other Transaction Documents. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, Buyer or the Company or its Subsidiaries and a third party Person other than the Shareholders Agent or a party to this Agreement Shareholder after the Closing, the Company and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel Xxxxxx & Xxxxxx L.L.P. to such third partyPerson; provided, however, that neither the Company nor its Subsidiaries may not waive such privilege without the prior written consent of the Stockholder RepresentativesShareholders Agent, which consent will not be unreasonably withheld.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of (a) Acquiror, the parties hereto that Companies and the Stockholder Representatives may retain existing special counsel to the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub Holder hereby agree that, in the event that a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among Acquiror, the Acquiror and Sub SCH Designated Directors and/or the Sponsor, on the one hand, and the Stockholder RepresentativesCompanies and/or the Holder, Counsel on the other hand, any legal counsel (including Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) that represented Acquiror, the SCH Designated Directors and/or the Sponsor prior to the Closing may represent the Stockholder Representatives SCH Designated Directors and/or the Sponsor in such dispute even though the interests of the Stockholder Representatives SCH Designated Directors and/or the Sponsor may be directly adverse to the Acquiror, Sub, the Company or its Subsidiaries, and even though Counsel such counsel may have represented the Company or its Subsidiaries Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Subthe SCH Designated Directors and/or the Sponsor. Acquiror, the Company or its Subsidiaries. Acquiror Companies and Sub the Holder further agree that, as to all legally privileged communications prior to the Closing between or among Counselany legal counsel (including Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP) that represented Acquiror, the Company, its Subsidiaries SCH Designated Directors and/or Sponsor prior to the Closing and the Stockholder Representatives any one or more such Persons that relate in any way to the transactions contemplated by this Agreementhereby, the attorney or solicitor-attorney/client privilege and the expectation of client confidence belongs to the Stockholder Representatives SCH Designated Directors and may be controlled by the Stockholder Representatives such SCH Designated Directors, and shall not pass to or be claimed or controlled by Acquiror (after giving effect to the Acquiror, SubClosing), the Company Companies and the Holder; provided that the SCH Designated Directors shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or its Subsidiariesdefense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by the Companies prior to the Closing with Acquiror, the Sponsor or the SCH Designated Directors (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Surviving Companies.
(b) Acquiror and the Companies hereby agree that, in the event that a dispute arises between the Acquiror, Sub, the Company or its Subsidiaries and a third party other than a party with respect to this Agreement or the transactions contemplated hereby arises after the ClosingClosing between or among the Holder Designated Directors and/or the Holder, on the one hand, and the Companies and/or Acquiror, on the other hand, any legal counsel (including Lxxxxx & Wxxxxxx LLP) that represented the Holder Designated Directors and/or the Holder prior to the Closing may represent the Holder Designated Directors and/or the Holder in such dispute even though the interests of the Holder Designated Directors and/or the Holder may be directly adverse to the Acquiror and/or the Companies, and even though such counsel may have represented Acquiror and/or the Companies in a matter substantially related to such dispute, or may be handling ongoing matters for Acquiror, the Company Companies, the Holder Designated Directors and/or the Holder. Acquiror and its Subsidiaries may assert the attorney Companies further agree that, as to all legally privileged communications prior to the Closing between or solicitor-among any legal counsel (including Lxxxxx & Wxxxxxx LLP) that represented the Companies, the Holder Designated Directors and/or the Holder prior to the Closing and any one or more such Persons that relate in any way to the transactions contemplated hereby, the attorney/client privilege and the expectation of client confidence belongs to prevent disclosure of confidential communications the Holder and/or the Holder Designated Directors and may be controlled by Counsel the Holder and/or such SCH Designated Directors, and shall not pass to such third partyor be claimed or controlled by Acquiror (after giving effect to the Closing) or the Companies; provided, however, provided that neither the Company nor its Subsidiaries may Holder and/or the Holder Designated Directors shall not waive such attorney/client privilege without other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by Acquiror prior written consent to the Closing with the Holder or the Holder Designated Directors (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Stockholder RepresentativesSurviving Companies.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company (“Counsel”) Stockholders’ Representative has retained Xxxxxxx to act as its counsel in connection with the transactions contemplated hereby. The Acquiror Parent and Sub MergerCo hereby agree that, in the event that a dispute arises after the Closing between Parent, the Acquiror Surviving Corporation and Sub its Subsidiaries on the one hand, and the Stockholder RepresentativesStockholders’ Representative and the Stockholders on the other hand, Counsel Xxxxxxx may represent the Stockholder Representatives Stockholders’ Representative and Stockholders in such dispute even though the interests of the Stockholder Representatives Stockholders’ Representative and Stockholders may be directly adverse to the Acquiror, Sub, the Company or Surviving Corporation and its Subsidiaries, and even though Counsel Xxxxxxx may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company Surviving Corporation or its Subsidiaries. Acquiror Parent and Sub MergerCo further agree that, as to all communications among CounselXxxxxxx, the Company, its Subsidiaries and Subsidiaries, the Stockholders’ Representative and/or any Stockholder Representatives that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs shall extend to the Stockholder Representatives Stockholders’ Representative and the Stockholders and may be controlled by the Stockholder Representatives and shall not pass to or be claimed by the Acquiror, Sub, the Company or its SubsidiariesStockholders’ Representative. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubParent, the Company or Surviving Corporation and its Subsidiaries on the one hand and a third party other than a party to this Agreement after the ClosingStockholders’ Representative or an Stockholder, on the other hand, Parent, the Company Surviving Corporation and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither Parent, the Company nor Surviving Corporation or its Subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesStockholders’ Representative.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto hereto, and Parent and Sub hereby agree, that the Stockholder Representatives may retain service of Xxxxxxx Procter LLP as existing special counsel to the Company BridgeCo (“Counsel”) shall not preclude Counsel from acting as counsel to act as its counsel the Rights Holder Representative in connection with the transactions contemplated hereby. The Acquiror and Sub hereby agree that, in the event that a any claim or dispute arises arising under ARTICLE I of this Agreement after the Closing between the Acquiror and Sub and the Stockholder RepresentativesClosing, Counsel may represent the Stockholder Representatives in such dispute even though the interests of the Stockholder Representatives Rights Holder Representative may be directly adverse to Parent, Sub or the Acquiror, Sub, the Company or its SubsidiariesSurviving Corporation, and even though Counsel may have represented the Company or its Subsidiaries BridgeCo in a matter substantially related to such dispute, or may be handling ongoing matters for connection with the Acquiror, Sub, the Company or its Subsidiariestransactions contemplated by this Agreement. Acquiror Parent and Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries BridgeCo and the Stockholder Representatives that relate Rights Holder Representative in any way to connection with the transactions contemplated by this Agreement, the attorney or solicitor-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Rights Holder Representative and may be controlled by the Stockholder Representatives Rights Holder Representative and shall not pass to or be claimed by Parent, Sub or the Acquiror, Sub, the Company or its SubsidiariesSurviving Corporation. Notwithstanding the foregoing, in the event that a dispute arises between Parent, Sub or the Acquiror, Sub, the Company or its Subsidiaries Surviving Corporation and a third party other than a party to this Agreement after the Closing, the Company and its Subsidiaries Surviving Corporation may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its Subsidiaries Surviving Corporation may not waive such privilege without the prior written consent of the Stockholder RepresentativesRights Holder Representative.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto The Buyer acknowledges and agrees that the Stockholder Representatives may retain existing special counsel to Non-ESOP Sellers and the Company (“Counsel”) to act Seller Representative shall not be precluded from retaining the services of MFS and ESOP Counsel as its counsel in connection with legal counsel, and the transactions contemplated hereby. The Acquiror and Sub hereby agree thatESOP Trustee shall not be precluded from retaining the services of Polsinelli as its legal counsel, in the event that a of any dispute arises after the Closing between the Acquiror and Sub Buyer or the Company, on the one hand, and the Stockholder RepresentativesSellers, Counsel may represent on the Stockholder Representatives in other hand, because such dispute even though concerns the interests Contemplated Transactions or whether otherwise involving the Company, notwithstanding, by itself, any result of MFS’s or ESOP Counsel’s prior representation of the Stockholder Representatives may be directly adverse Company or Pxxxxxxxxx’x prior representation of the ESOP Trustee. Notwithstanding the sale of the Shares to the AcquirorBuyer, Subthe Buyer agrees that neither the Buyer nor the Company shall have the right to assert (and the Buyer shall cause the Company not to assert) the attorney/client privilege as to any attorney/client privileged pre-Closing communications between the Sellers, the ESOP Trustee, the Company or any officer, director or employee of the Company (for the Company and its Subsidiariesofficers, directors and employees, only with respect to pre-Closing communications), on one hand, and even though MFS, ESOP Counsel may have represented or Polsinelli on the Company or its Subsidiaries in a matter substantially related to such disputeother hand, or may be handling ongoing matters for the Acquiror, Sub, the Company or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries and the Stockholder Representatives that relate in any way to the transactions contemplated by this Agreementextent that the privileged communications directly relate to the Contemplated Transactions (“Privileged Communications”), the attorney provided, however, that no Seller or solicitor-any of its Affiliates or Representatives may waive any such attorney/client privilege and the expectation or exception of client confidence belongs to in connection with any matter involving a third party without the Stockholder Representatives and may be controlled by prior written consent of the Stockholder Representatives and shall not pass to or be claimed by the Acquiror, Sub, the Company or its SubsidiariesBuyer. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, the Company Buyer or its Subsidiaries Affiliates (including the Acquired Companies), on the one hand, and a third party other than a party to this Agreement after any Seller, on the Closingother hand, the Company Buyer and its Subsidiaries Affiliates (including the Acquired Companies) may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; party and the Buyer and the Sellers will share such privilege with respect to such Privileged Communications solely in respect of any such disputes, provided, however, that neither Buyer nor any of its Affiliates (including the Company nor its Subsidiaries Acquired Companies) may waive such privilege with respect to the Privileged Communications without the prior written consent of the Stockholder Representatives.Sellers’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed. Except as set forth herein, the parties hereto agree that only the Sellers shall be entitled to assert such attorney/client privilege in connection with any dispute between the parties hereto in connection with such communications following the Closing and the files generated and maintained by MFS, ESOP Counsel and Polsinelli as a result of MFS’s and ESOP Counsel’s representation of the Company and, if applicable, the Non-ESOP Sellers, and as a result of Pxxxxxxxxx’x representation of the ESOP Trustee, in connection with the Contemplated Transaction or any efforts to sell the Shares to the Buyer or any other Person shall be and become the exclusive property of the Sellers, as applicable. 96760364_21
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror Buyer and Sub Sellers hereby agree that, in the event that a dispute arises after the Closing between the Acquiror Buyer or Comfort Care and Sub and the Stockholder Representativesa Seller, Counsel Xxxxxx Snow LLP may represent the Stockholder Representatives such Seller in such dispute even though the interests of the Stockholder Representatives such Seller may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesComfort Care, and even though Counsel Xxxxxx Snow LLP may have represented the Company or its Subsidiaries Comfort Care in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company or its SubsidiariesComfort Care. Acquiror and Sub Buyer further agree agrees that, as to all communications among Counselbetween Xxxxxx Snow LLP, the Company, its Subsidiaries Comfort Care and the Stockholder Representatives Sellers that relate in any way to the transactions contemplated by this AgreementAgreement (a “Privileged Communication”), the attorney attorney-client, work product, business strategy or solicitor-client similar protection or privilege and the expectation of client confidence belongs to the Stockholder Representatives Sellers and may be controlled by the Stockholder Representatives Sellers, and shall not transfer, pass to or be claimed or controlled by Comfort Care or Buyer notwithstanding the Acquiror, Sub, transfer of Membership Interests hereunder; provided that Sellers shall not waive such attorney-client privilege other than to the Company extent appropriate in connection with the enforcement or its Subsidiariesdefense of their respective rights or obligations existing under this Agreement and the other Transaction Documents. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, the Company Buyer or its Subsidiaries Comfort Care and a third party Person other than a party to this Agreement Seller after the Closing, the Company and its Subsidiaries Comfort Care may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel Xxxxxx Snow LLP to such third partyPerson; provided, however, that neither the Company nor its Subsidiaries Comfort Care may not waive such privilege without the prior written consent of Sellers, which consent will not be unreasonably withheld. In the Stockholder Representativesevent that Buyer or any of its Affiliates (including any Company or Subsidiary) is legally required to access or obtain a copy of all or a portion of the Privileged Communications, to the extent permitted by applicable Legal Requirements, then Buyer shall notify the Sellers’ Representative in writing so that the Sellers’ Representative can seek a protective order. Notwithstanding anything in this Section 12.13 to the contrary, in any such case, the Parties shall reasonably cooperate to seek to provide for access in a manner that does not violate any such privilege or applicable Legal Requirements; provided that in each such case, the Sellers’ Representative shall reasonably cooperate with Buyer to enable Buyer and its representatives to enter into appropriate confidentiality, joint defense or similar arrangements so that Buyer and its representatives may have reasonable access to such information.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Aveanna Healthcare Holdings, Inc.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to (a) SPAC and the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the Acquiror and Sub one hand, and the Stockholder RepresentativesCompany, Counsel PubCo, Merger Sub 1, Merger Sub 2, on the other hand, that Loeb & Loeb LLP (or any of its successors) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Stockholder Representatives Sponsor in such dispute even though the interests of the Stockholder Representatives Sponsor may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesSPAC, and even though Counsel such counsel may have represented the Company or its Subsidiaries SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company SPAC and/or Sponsor. All communication between or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Prior SPAC Counsel, on the Companyone hand, its Subsidiaries and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the Stockholder Representatives that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitor-client privilege and the expectation of client confidence belongs relating thereto shall belong solely to the Stockholder Representatives and may Sponsor, shall be controlled by the Stockholder Representatives Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the AcquirorSurviving Corporation following the Closing. Notwithstanding the foregoing, Subany privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Caravelle Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the Company “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Caravelle Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Caravelle Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Subsidiaries. Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the AcquirorCaravelle Companies, Subon the one hand, the Company or its Subsidiaries and a third party other than a party to this Agreement after Sponsor, on the Closingother hand, the Company and its Subsidiaries Sponsor may assert the attorney or solicitorattorney-client privilege to prevent the disclosure of confidential communications by Counsel the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC nor the Company nor its Subsidiaries Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the Stockholder Representativesevent that SPAC, PubCo or the Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Caravelle Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Caravelle Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Caravelle Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Caravelle Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Caravelle Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Caravelle Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Xxx Xx Law Offices LLC has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of the Original Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, and Xxxxx Xxxxxxx LLP (together with Xxx Xx Law Office LLC, “Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Caravelle Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
(g) SPAC further agrees that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Caravelle Companies, or PubCo or the Acquisition Entities or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised Parties, shall be controlled by Surviving Corporation on behalf of the Caravelle Companies and shall not pass to or be claimed by SPAC. All Company Deal Communications that are attorney-client privileged (the “Privileged Company Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Surviving Corporation and the Company, shall be controlled by Surviving Corporation on behalf of the Company and shall not pass to or be claimed by SPAC; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between SPAC or the Caravelle Companies, PubCo or the Acquisition Entities, on the one hand, and a third party other than Sponsor, on the other hand, SPAC or the Caravelle Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications to such third party; provided, however, that neither SPAC nor the Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the event that SPAC or the Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Company Deal Communications, SPAC shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Surviving Corporation in writing (including by making specific reference to this Section 11.8) so that Surviving Corporation can seek a protective order and SPAC agrees to use all commercially reasonable efforts to assist therewith.
(i) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only Surviving Corporation and the Company Advised Parties shall hold such property rights and Prior Company Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Company Deal Communications by reason of any attorney-client relationship between Prior Company Counsel, on the one hand, and the Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(j) SPAC agrees (i) to the extent that SPAC receives or takes physical possession of any Company Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties or any other Person, of the privileges or protections described in this Section 11.18, and (b) SPAC shall not assert any claim that any of the Company Advised Parties or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the attorney-client or other privilege, or by otherwise asserting that SPAC has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pacifico Acquisition Corp.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to Xxxxxxxxx Xxxxxxx LLP has represented the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated herebyby this Agreement and no other Person. The Acquiror Purchaser and Sub the Company hereby agree that, in the event that a dispute arises after the Closing between Purchaser or the Acquiror Company and Sub and the Stockholder RepresentativesStockholders, Counsel Xxxxxxxxx Xxxxxxx LLP may represent the Stockholder Representatives Stockholders in such dispute even though the interests of the Stockholder Representatives Stockholders may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesCompany, and even though Counsel Xxxxxxxxx Xxxxxxx LLP may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the AcquirorCompany. Purchaser, Sub, Stockholders and the Company or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Counselbetween Xxxxxxxxx Xxxxxxx LLP, the Company, its Subsidiaries Company and the Stockholder Representatives Stockholders that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Stockholders and may be controlled by the Stockholder Representatives Stockholders, and shall not pass to or be claimed or controlled by the Acquiror, Sub, Company; provided that Stockholders shall waive such attorney-client privilege other than to the Company extent appropriate in connection with the enforcement or its Subsidiariesdefense of their respective rights or obligations existing under this Agreement and the other Stockholder Documents. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, Purchaser or the Company or its Subsidiaries and a third party Person other than a party to this Agreement Stockholders after the Closing, the Company and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel Xxxxxxxxx Xxxxxxx LLP to such third partyPerson; provided, however, that neither the Company nor its Subsidiaries may not waive such privilege without the prior written consent of Stockholders’ Representative, which consent will not be unreasonably withheld. For the avoidance of doubt, no Stockholder Representativesshall be required to use Xxxxxxxxx Xxxxxxx LLP or is otherwise agreeing to use Xxxxxxxxx Xxxxxxx LLP in the future and representation of Stockholders shall include Stockholders’ Representative.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each (a) Acquiror, the Companies, the SIM Sellers and the Holder Representatives on behalf of the parties hereto that the Stockholder Representatives may retain existing special counsel to the applicable Pre-Closing Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub Holders hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Acquiror, the Acquiror and Sub Sponsor-Designated Directors or Sponsor, on the one hand, and the Stockholder Company, the Pre-Closing Company Holders or the Holder Representatives, Counsel on the other hand, any legal counsel (including Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP) that represented Acquiror, the Sponsor-Designated Directors or Sponsor prior to the Closing may represent the Stockholder Representatives Sponsor-Designated Directors or Sponsor in such dispute even though the interests of the Stockholder Representatives Sponsor-Designated Directors or Sponsor may be directly adverse to the Acquiror, Sub, the Company or its Subsidiaries, and even though Counsel such counsel may have represented the Company or its Subsidiaries Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Subthe Sponsor-Designated Directors or Sponsor. Acquiror, the Companies, the SIM Sellers and the Holder Representatives on behalf of the applicable Pre-Closing Company or its Subsidiaries. Acquiror and Sub Holders further agree that, as to all legally privileged communications prior to the Closing between or among Counselany legal counsel (including Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP) that represented Acquiror, the Company, its Subsidiaries Sponsor-Designated Directors or Sponsor prior to the Closing and the Stockholder Representatives any one or more such Persons that relate in any way to the transactions contemplated by this AgreementTransactions, the attorney or solicitor-attorney/client privilege and the expectation of client confidence belongs to the Stockholder Representatives Sponsor-Designated Directors and may be controlled by the Stockholder Representatives such Sponsor-Designated Directors, and shall not pass to or be claimed or controlled by Acquiror (after giving effect to the Acquiror, SubClosing), the Companies or the Pre-Closing Company Holders; provided, that the Sponsor-Designated Directors shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or its Subsidiariesdefense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, in any privileged communications or information shared by the event that a dispute arises between Companies or the Pre-Closing Company Holders (other than Granite) prior to the Closing with Acquiror, SubSponsor or the Sponsor-Designated Directors (in any capacity) shall remain the privileged communications or information of the Surviving Corporation.
(b) Recognizing that Xxxxxxxx & Xxxxx LLP has acted as legal counsel to the Panavision Group, the Company or its Subsidiaries Principal Panavision Holders, the Panavision Holder Representative and a third party other than a party their respective Affiliates prior to this Agreement the Closing, and that Xxxxxxxx & Xxxxx LLP intends to act as legal counsel to the Principal Panavision Holders, the Panavision Holder Representative and their respective Affiliates (which will no longer include the Panavision Group) after the Closing, the Company Acquiror hereby waives, on its own behalf and agrees to cause its Subsidiaries Affiliates to waive, any conflicts that may assert the attorney or solicitor-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its Subsidiaries may waive such privilege without the prior written consent arise in connection with Xxxxxxxx & Xxxxx LLP representing any of the Stockholder RepresentativesPrincipal Panavision Holders, the Panavision Holder Representative or their Affiliates after the Closing as such representation may relate to Acquiror, any Company Group or any of the transactions contemplated by this Agreement or any of the Ancillary Agreements.
(c) Recognizing that Stikeman Elliott LLP has acted as legal counsel to the SIM Group and Granite prior to the Closing, and that Stikeman Elliott LLP intends to act as legal counsel to Granite after the Closing, Acquiror hereby waives, on its own behalf and agrees to cause its Affiliates to waive, any conflicts that may arise in connection with Stikeman Elliott LLP representing Granite after the Closing as such representation may relate to Acquiror, any Company Group or any of the transactions contemplated by this Agreement or any of the Ancillary Agreements. Notwithstanding the foregoing, any privileged communications or information shared by Granite prior to the Closing shall remain the privileged communications or information of Granite.
Appears in 1 contract
Samples: Business Combination Agreement (Saban Capital Acquisition Corp.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company Companies and Shareholder have retained Nyemaster Gxxxx P.C. (“Shareholder’s Counsel”) to act as its their counsel in connection with the transactions contemplated herebyhereby and that Shareholder’s Counsel has not acted as counsel for any other party in connection with the transactions contemplated hereby and that none of the other parties has the status of a client of Shareholder’s Counsel for conflict of interest or any other purposes as a result thereof. The Acquiror and Sub Parent hereby agree agrees that, in the event that a dispute arises after the Closing between the Acquiror and Sub Parent and the Stockholder RepresentativesShareholder, Shareholder’s Counsel may represent the Stockholder Representatives Shareholder in such dispute even though the interests of the Stockholder Representatives Shareholder may be directly adverse to Parent or the Acquiror, Sub, the Company or its SubsidiariesCompanies, and even though Shareholder’s Counsel may have represented the Company or its Subsidiaries Companies in a matter substantially related to such dispute, or may be handling ongoing matters for Parent or the Acquiror, Sub, the Company or its SubsidiariesCompanies. Acquiror and Sub Parent further agree agrees that, as to all communications among Counsel, the Company, its Subsidiaries Shareholder’s Counsel and the Stockholder Representatives Companies and the Shareholder that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Shareholder and may be controlled by the Stockholder Representatives Shareholder and shall not pass to or be claimed by Parent or the Acquiror, Sub, the Company or its SubsidiariesCompanies. Notwithstanding the foregoing, in the event that a dispute arises between Parent or the Acquiror, Sub, the Company or its Subsidiaries Companies and a third party Person other than a party to this Agreement after the Closing, the Company and its Subsidiaries Companies may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Shareholder’s Counsel to such third partyPerson; provided, however, that neither the Company nor its Subsidiaries Companies may waive such privilege without the prior written consent of the Stockholder RepresentativesShareholder.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives Securityholder Representative or the Securityholders may retain existing special counsel to the Company Xxxxxxx Procter LLP (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror Buyer and Merger Sub hereby agree that, in the event that a dispute arises after the Closing between Buyer and Merger Sub, on the Acquiror and Sub one hand, and the Stockholder RepresentativesSecurityholder Representative or the Securityholders, on the other hand, Counsel may represent the Stockholder Representatives Securityholder Representative and/or the Securityholders in such dispute even though the interests of the Stockholder Representatives Securityholder Representative and/or the Securityholders may be directly adverse to Buyer, Merger Sub or the Acquiror, Sub, the Company or its SubsidiariesCompany, and even though Counsel may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for Buyer, Merger Sub or the Acquiror, Sub, the Company or its SubsidiariesCompany. Acquiror Buyer and Merger Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries the Securityholders and the Stockholder Representatives Securityholder Representative that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Securityholder Representative and/or the Securityholders (as applicable) and may be controlled by the Stockholder Representatives Securityholder Representative and/or the Securityholders and shall not pass to or be claimed by Buyer, Merger Sub or the Acquiror, Sub, the Company or its SubsidiariesCompany. Notwithstanding the foregoing, in the event that a dispute arises between the AcquirorBuyer, Sub, Merger Sub or the Company or its Subsidiaries and a third party other than a party to this Agreement after the Closing, the Company and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its Subsidiaries may not waive such privilege without the prior written consent of the Stockholder RepresentativesSecurityholder Representative.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company Sellers’ Representative has retained Xxxxx Xxxxxx LLP (“CounselDM”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub Buyer hereby agree that, agrees that in the event that of a dispute under this Agreement, the Ancillary Documents and the documents and instruments contemplated hereby and thereby related to the transactions contemplated hereby or thereby that arises after the Closing between Buyer Indemnified Parties, on the Acquiror and Sub one hand, and the Stockholder RepresentativesSellers’ Representative and Sellers, Counsel on the other hand, DM may represent the Stockholder Representatives Sellers’ Representative and/or Sellers in such dispute even though the interests of the Stockholder Representatives Sellers’ Representative and/or Sellers may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesBuyer Indemnified Parties, and even though Counsel DM may have represented the Company or its Subsidiaries in a matter substantially related to such dispute; provided, however, this sentence shall not apply if and to the extent (a) DM is then representing the Buyer Indemnified Parties and (b) such representation of such member of the Buyer Indemnified Parties would require DM to either refrain from representing the Sellers’ Representative and/or Sellers or may be handling ongoing matters for obtain the Acquiror, Sub, informed consent of the Company Sellers’ Representative and/or Sellers and the applicable member of the Buyer Indemnified Parties under applicable Laws or its Subsidiariesapplicable ethical standards governing attorney conduct. Acquiror and Sub Buyer further agree agrees that, as to all communications among CounselDM, the Company, its Subsidiaries and the Stockholder Representatives Sellers’ Representative and/or any Seller that relate in any way to the transactions contemplated by this Agreementhereby or a similar transaction prior to the Closing (the “Protected Communications”), the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs with respect to the Stockholder Representatives Protected Communications (the “Associated Rights”) belong to the Sellers’ Representative and Sellers and may be controlled by the Stockholder Representatives Sellers’ Representative and Sellers and shall not pass to or be claimed by the Acquiror, SubBuyer, the Company (after Closing) or any of their Subsidiaries; provided, however, the parties hereto expressly agree that the Protected Communications and Associated Rights shall not include any communications at or prior to the Closing among DM, the Company, the Sellers’ Representative and/or any Seller: (i) relating to (A) the pre-Closing operation by the Company of its Subsidiariesbusiness other than the negotiation of the transactions contemplated hereby or a similar transaction prior to the Closing or (B) Fraud (whether related to the negotiation of the transactions contemplated hereby or a similar transaction prior to the Closing or otherwise); or (ii) with respect to which the attorney-client privilege could not validly be asserted by the Company prior to the Closing. Notwithstanding the foregoing, (x) in the event that a dispute arises between Buyer Indemnified Parties, on the Acquirorone hand, Sub, the Company or its Subsidiaries and a third party other than the Sellers’ Representative or a party to this Agreement after Seller, on the Closingother hand, the Company and its Subsidiaries Buyer Indemnified Parties may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its Subsidiaries Buyer Indemnified Parties may not waive such privilege without the prior written consent of the Stockholder RepresentativesSellers’ Representative and (y) if Buyer is legally required by order of a Governmental Authority to access or obtain a copy of all or a portion of the Protected Communications, Buyer shall be entitled to access or obtain a copy of and disclose the Protected Communications to the extent necessary to comply with any such order.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to (a) SPAC and the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Sponsor, on the Acquiror one hand, and Sub and SPAC or the Stockholder RepresentativesCompany, Counsel on the other hand, (i) any legal counsel (including Hogan Lovells US LLP) that represented SPAC or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Stockholder Representatives Sponsor in such dispute even though the interests of the Stockholder Representatives Sponsor may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesSPAC, and even though Counsel such counsel may have represented SPAC prior to the Company or its Subsidiaries Closing in a matter substantially related to such dispute, and (ii) any legal counsel (including Allen Overy Shearman Sterling US LLP and McMillan LLP) that represented the Company prior to the Closing (“Prior Company Counsel”) may represent the Company, SPAC or any of their respective Affiliates in such dispute even though the interests of SPAC may be handling ongoing matters for directly adverse to Sponsor, and even though such counsel may have represented the AcquirorCompany prior to the Closing in a matter substantially related to such dispute.
(b) The Company further agrees, Subon behalf of itself and, after the Closing, on behalf of SPAC, the Company and their respective Affiliates, that all pre-Closing communications in any form or its Subsidiaries. Acquiror and Sub further agree that, as to all communications format whatsoever between or among any of Prior SPAC Counsel, the CompanySPAC or Sponsor, its Subsidiaries and the Stockholder or any of their respective Representatives that relate in any way to the transactions contemplated by negotiation or documentation of this Agreement or the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the attorney or solicitor-client privilege “SPAC Deal Communications”) shall be deemed to be retained and the expectation of client confidence belongs to the Stockholder Representatives and may owned collectively by Sponsor, shall be controlled by the Stockholder Representatives Sponsor and shall not pass to or be claimed by the Acquiror, SubSPAC, the Company or their respective Affiliates after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, the Company or their respective Affiliates after the Closing; provided, however, that nothing contained herein shall be deemed to be a waiver by Sponsor or any of its Subsidiaries. Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubSPAC, the Company or its Subsidiaries their respective Affiliates, on the one hand, and a third party other than a party to this Agreement after Sponsor, on the Closingother hand, the Company and its Subsidiaries Sponsor may assert the attorney or solicitorattorney-client privilege to prevent the disclosure of confidential communications by Counsel the Privileged SPAC Deal Communications to such third party; provided, however, that neither none of SPAC, the Company nor its Subsidiaries their respective Affiliates may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of Sponsor. In the Stockholder Representativesevent that SPAC, the Company or any of their respective Affiliates is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, SPAC shall, as promptly as reasonably practicable after becoming aware thereof, notify Sponsor in writing so that Sponsor can (at the sole cost and expense of Sponsor) seek a protective order, and SPAC, the Company and their respective Affiliates agree to use commercially reasonable efforts (at the sole cost and expense of Sponsor) to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, the Company or any of their respective Affiliates after the Closing, on the other hand, so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) SPAC agrees on behalf of itself and, after the Closing, on behalf of SPAC and the Company, (i) to the extent that SPAC or, after the Closing, the Company receives or takes physical possession of any SPAC Deal Communications, (A) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person of the privileges or protections described in this Section 11.18, and (B) neither SPAC nor, after the Closing, the Company shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC or, after the Closing, the Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC or, after the Closing, the Company have the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Samples: Business Combination Agreement (Plum Acquisition Corp. III)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to Stockholders’ Representative (on behalf of the Company Stockholders) has retained Xxxxx Lovells US LLP (“CounselXxxxx”) to act as its counsel in connection with the transactions contemplated herebyTransactions. The Acquiror Purchaser, Merger Subsidiary and Sub the Surviving Corporation hereby agree that, that in the event that a dispute arises after the Closing between Purchaser, the Acquiror and Sub Surviving Corporation and/or their respective Affiliates, on the one hand, and the Stockholder RepresentativesStockholders’ Representative and the Stockholders, Counsel on the other hand, Xxxxx may represent the Stockholder Representatives Stockholders’ Representative and/or the Stockholders in such dispute even though the interests of the Stockholder Representatives Stockholders’ Representative and/or the Stockholders may be directly adverse to the Acquiror, SubPurchaser, the Company or its SubsidiariesSurviving Corporation and/or their respective Affiliates, and even though Counsel Xxxxx may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, SubSurviving Corporation. Purchaser, the Company or its Subsidiaries. Acquiror and Sub Surviving Corporation and/or their respective Affiliates further agree that, as to all communications among CounselXxxxx, the Company, its Subsidiaries and the Stockholders’ Representative and/or any Stockholder Representatives that relate in any way directly to the transactions contemplated by this AgreementTransactions prior to the Closing, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Stockholders’ Representative and the Stockholders and may be controlled by the Stockholder Representatives Stockholders’ Representative and Stockholders and shall not pass to or be claimed by Purchaser, Merger Subsidiary, or the Acquiror, Sub, the Company or its SubsidiariesSurviving Corporation. Notwithstanding the foregoing, in the event that a dispute arises between Purchaser, and/or the AcquirorSurviving Corporation, Subon the one hand, the Company or its Subsidiaries and a third party other than the Stockholders’ Representative or a party to this Agreement after Stockholder, on the Closingother hand, Purchaser and the Company and its Subsidiaries Surviving Corporation may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither Purchaser nor the Company nor its Subsidiaries Surviving Corporation may waive such privilege without the prior written consent of the Stockholder RepresentativesStockholders’ Representative.
Appears in 1 contract
Samples: Merger Agreement (Appfolio Inc)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to Companies, some or all of the Company Sellers and Selling Equityholders, and the Sellers’ Representative have retained Xxxxxx Xxxxxxxx + Xxxx LLP (“CounselWNJ”) to act as its their counsel in connection with the transactions contemplated herebyhereby and that WNJ has not acted as counsel for any other party in connection with the transactions contemplated hereby and that none of the other parties has the status of a client of WNJ for conflict of interest or any other purposes as a result thereof. The Acquiror and Sub Buyer hereby agree agrees that, in the event that a dispute arises after the Closing between Purchaser, the Acquiror and Sub and Sellers, the Stockholder RepresentativesSelling Equityholders or the Sellers’ Representative, Counsel WNJ may represent the Stockholder Representatives Sellers, Selling Equityholders or the Sellers’ Representative in such dispute even though the interests of the Stockholder Representatives Sellers, Selling Equityholders or Sellers’ Representative may be directly adverse to the Acquiror, SubPurchaser, the Company other Sellers, the other Selling Equityholders or its Subsidiariesthe Companies, and even though Counsel WNJ may have represented the Company or its Subsidiaries Companies in a matter substantially related to such dispute, or may be handling ongoing matters for Purchaser or the Acquiror, Sub, the Company or its SubsidiariesCompanies. Acquiror and Sub Purchaser further agree agrees that, as to all communications among CounselWNJ and the Companies, the CompanySellers, its Subsidiaries and the Stockholder Representatives Selling Equityholders and/or the Sellers’ Representative that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Sellers’ Representative and may be controlled by the Stockholder Representatives Sellers’ Representative and shall not pass to or be claimed by Purchaser or the Acquiror, Sub, the Company or its SubsidiariesCompanies. Notwithstanding the foregoing, in the event that a dispute arises between Purchaser or the Acquiror, Sub, the Company or its Subsidiaries Companies and a third party Person other than a party to this Agreement after the Closing, the Company and its Subsidiaries Companies may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel WNJ to such third partyPerson; provided, however, that neither the Company nor its Subsidiaries Companies may waive such privilege without the prior written consent of the Stockholder RepresentativesSellers’ Representative.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Orthopediatrics Corp)
Conflicts and Privilege. It is acknowledged by each of the parties hereto Parties that the Stockholder Representatives may retain existing special counsel to the Company Seller has retained Stikeman Elliott LLP (“Counsel”"SE") to act as its counsel in connection with the transactions contemplated herebyherein. The Acquiror and Sub hereby agree Purchaser agrees that, in the event that a dispute arises after the Closing between the Acquiror Purchaser and Sub and the Stockholder RepresentativesSeller, Counsel SE may represent the Stockholder Representatives Seller in such dispute even though the interests of the Stockholder Representatives Seller may be directly adverse to the Acquiror, Subany of Purchaser, the Company or its SubsidiariesAcquired Companies and the Non-Controlled Joint Ventures, and even though Counsel SE may have represented any of the Company or its Subsidiaries Acquired Companies and the Non-Controlled Joint Ventures in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, SubPurchaser, the Company or its SubsidiariesAcquired Companies and the Non-Controlled Joint Ventures. Acquiror and Sub Purchaser further agree agrees that, as to all communications among CounselSE, the CompanyAcquired Companies, its Subsidiaries the Non-Controlled Joint Ventures, Seller and the Stockholder Representatives Guarantor that relate in any way to the transactions contemplated by in this Agreement, the attorney or solicitor-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Seller and may be controlled by the Stockholder Representatives Seller and shall not pass to or be claimed by the Acquiror, Subany of Purchaser, the Company or its SubsidiariesAcquired Companies and the Non-Controlled Joint Ventures. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubPurchaser, the Company Acquired Companies or its Subsidiaries the Non-Controlled Joint Ventures and a third party other than a party to this Agreement after the Closing, the Company Acquired Companies and its Subsidiaries the Non-Controlled Joint Ventures may assert the attorney or solicitor-client privilege to prevent disclosure of confidential communications by Counsel SE to such third party; , provided, however, that neither the Company nor its Subsidiaries Acquired Companies and the Non-Controlled Joint Ventures may not waive such privilege without the prior written consent of the Stockholder RepresentativesSeller.
Appears in 1 contract
Samples: Share Purchase Agreement (Taylor Morrison Home Corp)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to Shareholders’ Representative and some or all of the Company other Common Equity Holders have retained Proskauer Rose LLP (“CounselProskauer”) to act as its their counsel in connection with the transactions contemplated hereby. The Acquiror Parent and Merger Sub hereby agree that, in the event that a dispute arises under this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby after the Closing between Parent and its Subsidiaries on the Acquiror and Sub one hand, and the Stockholder RepresentativesShareholders’ Representative and/or any Common Equity Holder on the other hand, Counsel Proskauer may represent the Stockholder Representatives Shareholders’ Representative and any or all Common Equity Holders in such dispute even though the interests of the Stockholder Representatives Common Equity Holders may be directly adverse to the Acquiror, SubParent, the Company or its Surviving Corporation and their respective Subsidiaries, and even though Counsel Proskauer may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company Surviving Corporation or its Subsidiaries. Acquiror Parent and Merger Sub further agree that, as to all communications among CounselProskauer, the Company, its Subsidiaries and Subsidiaries, the Stockholder Representatives Shareholders’ Representative and/or any Common Equity Holder that relate in any way to the transactions contemplated by this AgreementAgreement or the other Transaction Documents, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Shareholders’ Representative and the Common Equity Holders and may be controlled by the Stockholder Representatives Shareholders’ Representative and Common Equity Holders and shall not pass to or be claimed by the AcquirorParent, Merger Sub, the Company Surviving Corporation or any of its Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubParent, the Company or Surviving Corporation and its Subsidiaries on the one hand and a third party other than the Shareholders’ Representative or a party to this Agreement after Common Equity Holder, on the Closingother hand, Parent, the Company Surviving Corporation and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of such confidential communications by Counsel to such third party; provided, however, that neither Parent, the Company nor Surviving Corporation or its Subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesShareholders’ Representative. Other than as explicitly set forth in this Section 8.18, the parties hereto acknowledge that any attorney-client privilege attaching as a result of legal counsel representing the Company prior to the Closing shall survive the Closing and continue to be a privilege of the Surviving Corporation, and not the Shareholders’ Representative and the Common Equity Holders, after Closing.
Appears in 1 contract
Samples: Merger Agreement (Helen of Troy LTD)
Conflicts and Privilege. It is acknowledged by each Parent, on behalf of itself, the Surviving Company and the Operating Company and its respective Affiliates (together, a “Parent Party”), agrees that, notwithstanding any current or prior representation of the parties hereto that Company by Xxxxx & Xxxxxxx LLP (“Xxxxx”), Xxxxx shall be allowed to represent the Stockholder Representatives may retain existing special counsel Representative and its Affiliates in any matters and disputes adverse to the Company (“Counsel”) Parent Party that either is existing on the date hereof or arises in the future and relates to act as its counsel in connection with this Agreement and the transactions contemplated hereby. The Acquiror Parent, on behalf of itself and Sub each Parent Party, hereby agree (a) waives any claim that any Parent Party has or may have that Xxxxx has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agrees that, in the event that if a dispute arises after the Closing between the Acquiror and Sub a Parent Party and the Stockholder RepresentativesRepresentative or any of its Affiliates, Counsel then Xxxxx may represent the Stockholder Representatives Representative or any of its Affiliates in such dispute dispute, even though the interests of the Stockholder Representatives Representative or any of its Affiliates may be directly adverse to the Acquiror, Sub, the Company or its Subsidiaries, Parent Party and even though Counsel Xxxxx may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the AcquirorParent Party. Parent, Subon behalf of itself and each Parent Party, the Company or its Subsidiaries. Acquiror and Sub further agree also agrees that, as to all communications between or among CounselXxxxx and a Company Holder, the Stockholder Representative, the Company, and/or any of its Subsidiaries and the Stockholder Representatives respective Affiliates that relate in any way to the transactions contemplated by this Agreementhereby, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Company Holders and the Stockholder Representatives and Representative, may not be controlled by the Stockholder Representatives any Parent Party and shall not pass to or be claimed by the Acquiror, Sub, Parent Party or the Company or its SubsidiariesCompany. Notwithstanding the foregoing, in the event that if a dispute arises between the Acquiror, Sub, the Company or its Subsidiaries a Parent Party and a third party other than a party to this Agreement the Stockholder Representative or an Affiliate of the Stockholder Representative after the Closing, then the Company and its Subsidiaries Parent Party (to the extent applicable) may assert the attorney or solicitorattorney-client privilege to prevent disclosure to such third party of confidential communications by Counsel to such third partyXxxxx; provided, however, that neither the Company nor its Subsidiaries Parent Party may not waive such privilege without the prior written consent of the Stockholder RepresentativesRepresentative.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives Member may retain existing special counsel to the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror Each of Buyer and Sub Buyer Ultimate Parent hereby agree agrees that, in the event that a dispute arises after the Closing between the Acquiror and Sub Buyer and/or Buyer Ultimate Parent and the Stockholder RepresentativesMember, Counsel may represent the Stockholder Representatives Member in such dispute even though the interests of the Stockholder Representatives Member may be directly adverse to the AcquirorBuyer, SubBuyer Ultimate Parent, the Company or its the Subsidiaries, and even though Counsel may have represented the Company or its the Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the AcquirorBuyer, SubBuyer Ultimate Parent, the Company or its the Subsidiaries. Acquiror Each of Buyer and Sub Buyer Ultimate Parent further agree agrees that, as to all communications among Counsel, the Company, its the Subsidiaries and the Stockholder Representatives Member that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Member and may be controlled by the Stockholder Representatives Member and shall not pass to or be claimed by the AcquirorBuyer, SubBuyer Ultimate Parent, the Company or its the Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the AcquirorBuyer, SubBuyer Ultimate Parent, the Company or its the Subsidiaries and a third party other than a party to this Agreement after the Closing, the Company and its the Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its the Subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesMember.
Appears in 1 contract
Samples: Securities Purchase Agreement (Zebra Technologies Corp)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that (a) the Stockholder Representatives Securityholder Representative or the Securityholders may retain existing special counsel to the Company Xxxxxxx Procter LLP (“CounselXxxxxxx”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror , and (b) Buyer, Merger Sub and Merger LLC hereby agree that, in the event that a dispute arises after the Closing between the Acquiror and Buyer, Merger Sub and Merger LLC, on the Stockholder Representativesone hand, Counsel and the Securityholder Representative or the Securityholders, on the other hand, Xxxxxxx may represent the Stockholder Representatives Securityholder Representative and/or the Securityholders in such dispute even though the interests of the Stockholder Representatives Securityholder Representative and/or the Securityholders may be directly adverse to the AcquirorBuyer, Merger Sub, Merger LLC or the Company or its Subsidiariesthe Surviving Company, and even though Counsel Xxxxxxx may have represented the Company or its Subsidiaries the Surviving Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company or its Subsidiariesthe Surviving Company. Acquiror Buyer, Merger Sub and Sub Merger LLC further agree that, as to all communications among CounselXxxxxxx, the Company, its Subsidiaries the Securityholders and the Stockholder Representatives Securityholder Representative that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Securityholder Representative and/or the Securityholders (as applicable) and may be controlled by the Stockholder Representatives Securityholder Representative and/or the Securityholders and shall not pass to or be claimed by the AcquirorBuyer, Merger Sub, Merger LLC, the Surviving Company or its Subsidiariesthe Company, to the Surviving Company or to the First-Step Surviving Corporation. Notwithstanding the foregoing, in the event that a dispute arises between the AcquirorBuyer, Merger Sub, Merger LLC or the Surviving Company or its Subsidiaries and a third party other than a party to this Agreement after the Closing, the Surviving Company and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel Xxxxxxx to such third party; provided, however, that neither the Company nor its Subsidiaries may not waive such privilege without the prior written consent of the Stockholder RepresentativesSecurityholder Representative.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aldeyra Therapeutics, Inc.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto Parties that the Stockholder Representatives may retain existing special counsel to the Company Sellers’ Representative has retained Xxxxxxxxx & Xxxxxxx LLP (“CounselXxxxxxxxx”) to act as its counsel in connection with the transactions contemplated herebyTransactions. The Acquiror and Sub Buyer hereby agree agrees that, in the event that a dispute arises after the Closing between the Acquiror Buyer, Holdco and Sub its Subsidiaries on the one hand, and the Stockholder RepresentativesSellers’ Representative and the Sellers on the other hand, Counsel Xxxxxxxxx may represent the Stockholder Representatives Sellers’ Representative and the Sellers in such dispute even though the interests of the Stockholder Representatives Sellers’ Representative and the Sellers may be directly adverse to the Acquiror, Sub, the Company or Holdco and its Subsidiaries, and even though Counsel Xxxxxxxxx may have represented the Company Holdco or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company Holdco or its Subsidiaries. Acquiror and Sub The Buyer further agree agrees that, as to all communications among CounselXxxxxxxxx, Holdco, its Subsidiaries, the Company, its Subsidiaries and the Stockholder Representatives Sellers’ Representative and/or any Seller that relate in any way to the transactions contemplated by this AgreementTransactions, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Sellers’ Representative and the Sellers and may be controlled by the Stockholder Representatives Sellers’ Representative and the Sellers and shall not pass to or be claimed by the AcquirorBuyer, Sub, the Company Holdco or any of its Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the AcquirorBuyer, Sub, the Company or Holdco and its Subsidiaries on the one hand and a third party other than the Sellers’ Representative or a party to this Agreement after Seller on the Closingother hand, the Company Buyer, Holdco and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor Buyer, Holdco or its Subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesSellers’ Representative.
Appears in 1 contract
Samples: Stock Purchase Agreement (Prestige Brands Holdings, Inc.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives Securityholder Representative may retain Gxxxxxx Procter LLP, existing special counsel to the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Merger Sub hereby agree that, in the event that a dispute arises after the Closing between the Acquiror and Merger Sub and the Stockholder RepresentativesSecurityholder Representative, Counsel may represent the Stockholder Representatives Securityholder Representative in such dispute even though the interests of the Stockholder Representatives Securityholder Representative may be directly adverse to the Acquiror, Sub, Merger Sub or the Company or its SubsidiariesCompany, and even though Counsel may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, Merger Sub or the Company or its SubsidiariesCompany. Acquiror and Merger Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries Company and the Stockholder Representatives Securityholder Representative that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitor-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Securityholder Representative and may be controlled by the Stockholder Representatives Securityholder Representative and shall not pass to or be claimed by the Acquiror, Sub, Merger Sub or the Company or its SubsidiariesCompany. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, Merger Sub or the Company or its Subsidiaries and a third party other than a party to this Agreement after the Closing, the Company and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its Subsidiaries may not waive such privilege without the prior written consent of the Stockholder RepresentativesSecurityholder Representative.
Appears in 1 contract
Samples: Merger Agreement (Kenexa Corp)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub Parties hereby agree that, in the event that a dispute arises after the Closing between the Acquiror and Sub and the Stockholder RepresentativesBuyer or any Seller, Counsel Sellers’ Representative or any of their Affiliates, Xxxxxxx may represent the Stockholder Representatives such Seller, Sellers’ Representative or any of their Affiliates in such dispute even though the interests of the Stockholder Representatives such Seller, Sellers’ Representative or any of their Affiliates may be directly adverse to the Acquiror, Sub, the Company Buyer or its SubsidiariesAffiliates, and even though Counsel Xxxxxxx may have represented the Company Buyer or its Subsidiaries Affiliate in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company Buyer or its SubsidiariesAffiliate. Acquiror Buyer further agrees, on behalf of itself and Sub further agree its Affiliates, that, as to all communications among Counsel, the Company, its Subsidiaries between Xxxxxxx and the Stockholder Representatives any Seller or Sellers’ Representative that relate in any way to the transactions contemplated by this Agreement, the attorney attorney-client, work product, business strategy or solicitor-client similar protection or privilege and the expectation of client confidence belongs to the Stockholder Representatives Sellers’ Representative and may be controlled by the Stockholder Representatives Sellers’ Representative, and shall not transfer, pass to or be claimed or controlled by the Acquiror, Sub, the Company Buyer or its SubsidiariesAffiliates notwithstanding the transfer of Assets hereunder; provided that Seller shall not waive such attorney-client privilege other than to the extent it deems appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement and the other Transaction Documents. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, the Company Buyer or its Subsidiaries Affiliate and a third party Person other than a party to this Agreement any Seller, Sellers’ Representative or any of their Affiliates after the Closing, the Company and its Subsidiaries Buyer may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel Xxxxxxx to such third partyPerson; provided, however, that neither the Company nor Buyer or its Subsidiaries Affiliates may not waive such privilege without the prior written consent of the Stockholder RepresentativesSellers’ Representative.
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Conflicts and Privilege. It is acknowledged by each of the parties hereto Parties that the Stockholder Representatives may retain existing special counsel to Sellers and the Company Corporation have retained Xxxxxxx Xxxxx LLP (“Sellers’ Counsel”) to act as its their counsel in connection with the transactions contemplated herebyTransactions. The Acquiror and Sub Purchaser hereby agree agrees that, in the event that a dispute arises after the Closing between the Acquiror Purchaser (on the one hand) and Sub and any of the Stockholder RepresentativesSellers (on the other hand), the Sellers’ Counsel may represent the Stockholder Representatives Sellers in such dispute even though the interests of the Stockholder Representatives Sellers may be directly adverse to the Acquiror, SubPurchaser, the Company Corporation or its Subsidiariesany other of the Acquired Entities, and even though Sellers’ Counsel may have represented the Company Corporation or its Subsidiaries any other of the Acquired Entities in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, SubPurchaser, the Company Corporation or its Subsidiariesany other of Acquired Entities. Acquiror and Sub The Purchaser further agree agrees that, as to all communications among Sellers’ Counsel, the CompanyCorporation, its Subsidiaries and any other of the Stockholder Representatives Acquired Entities or the Sellers that relate in any way to the transactions contemplated by this AgreementTransactions, the attorney or solicitor-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Sellers and may be controlled by the Stockholder Representatives Sellers and shall not pass to or be claimed by the Acquiror, SubPurchaser, the Company Corporation or its Subsidiariesany other of the Acquired Entities. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubPurchaser, the Company Corporation or its Subsidiaries any other member of the Acquired Entities and a third party other than a party Party to this Agreement after the Closing, the Company Corporation and its Subsidiaries any other of the Acquired Entities may assert the attorney or solicitor-client privilege to prevent disclosure of confidential communications by Sellers’ Counsel to such third party; provided, however, that neither the Company Corporation nor its Subsidiaries any other of the Acquired Entities may waive such privilege without the prior written consent of the Stockholder RepresentativesSellers. This Section 6.21 shall survive the Closing.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to Company and the Company Representative have retained Bxxxxx PLC (“CounselBodman”) to act as its their counsel in connection with the transactions Transactions contemplated herebyhereby and that Bodman has not acted as counsel for any other party in connection with the Transactions contemplated hereby and that none of the other parties has the status of a client of Bodman for conflict of interest or any other purposes as a result thereof. The Acquiror and Sub Buyer hereby agree agrees that, in the event that a dispute arises after the Closing between the Acquiror and Sub and Buyer or the Stockholder RepresentativesRepresentative, Counsel Bodman may represent the Stockholder Representatives Representative in such dispute even though the interests of the Stockholder Representatives Representative may be directly adverse to the AcquirorBuyer, Subthe other Stockholders, the Company or its the Subsidiaries, and even though Counsel Bodman may have represented the Company or its the Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, SubBuyer, the Company or its the Subsidiaries. Acquiror and Sub Buyer further agree agrees that, as to all communications among Counsel, Bodman and the Company, its the Subsidiaries and and/or the Stockholder Representatives Representative that relate in any way to the transactions Transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Representative and may be controlled by the Stockholder Representatives Representative and shall not pass to or be claimed by the Acquiror, SubBuyer, the Company or its the Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubBuyer, the Company or its the Subsidiaries and a third party other than a party to this Agreement after the Closing, the Company and its the Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel Bodman to such third party; provided, however, that neither the Company nor its the Subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesRepresentative.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to ACAS, ACEI, ACEII, the Company and the Securityholder Representative have retained PB and Xxxxxx & Xxxxxx LLP (“CounselAP”) to act as its their counsel in connection with the transactions contemplated herebyhereby and that neither PB nor AP has acted as counsel for any other party in connection with the transactions contemplated hereby and that none of the other parties has the status of a client of PB or AP for conflict of interest or any other purposes as a result thereof. The Acquiror and Sub Buyer hereby agree agrees that, in the event that a dispute arises after the Closing between the Acquiror and Sub and Buyer, ACAS, ACEI, ACEII or the Stockholder RepresentativesSecurityholder Representative, Counsel PB or AP may represent ACAS, ACEI, ACEII or the Stockholder Representatives Securityholder Representative in such dispute even though the interests of ACAS, ACEI, ACEII or the Stockholder Representatives Securityholder Representative may be directly adverse to Buyer, the Acquiror, Subother Securityholders, the Company or its the Subsidiaries, and even though Counsel PB or AP, as applicable, may have represented the Company or its the Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, SubBuyer, the Company or its the Subsidiaries. Acquiror and Sub The Buyer further agree agrees that, as to all communications among Counsel, PB or AP and the Company, its Subsidiaries and any Subsidiary, ACAS, ACEI, ACEII and/or the Stockholder Representatives Securityholder Representative that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Securityholder Representative and may be controlled by the Stockholder Representatives Securityholder Representative and shall not pass to or be claimed by the Acquiror, SubBuyer, the Company or its Subsidiariesany Subsidiary. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubBuyer, the Company or its Subsidiaries any Subsidiary and a third party other than a party to this Agreement after the Closing, the Company and its Subsidiaries or such Subsidiary may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel PB or AP to such third party; provided, however, that neither the Company nor its Subsidiaries such Subsidiary may waive such privilege without the prior written consent of PB or AP, as applicable. Each of PB and AP is an intended third party beneficiary of this Section 8.06 and shall be entitled to rely on the Stockholder Representativesprovisions hereof.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to (a) SPAC and the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the Acquiror and Sub one hand, and the Stockholder RepresentativesCompany, Counsel PubCo, Merger Sub 1, Merger Sub 2, on the other hand, that Loeb & Loeb LLP (or any of its successors) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Stockholder Representatives Sponsor in such dispute even though the interests of the Stockholder Representatives Sponsor may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesSPAC, and even though Counsel such counsel may have represented the Company or its Subsidiaries SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Company SPAC and/or Sponsor. All communication between or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Prior SPAC Counsel, on the Companyone hand, its Subsidiaries and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the Stockholder Representatives that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitor-client privilege and the expectation of client confidence belongs relating thereto shall belong solely to the Stockholder Representatives and may Sponsor, shall be controlled by the Stockholder Representatives Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the AcquirorSurviving Corporation following the Closing. Notwithstanding the foregoing, Subany privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Caravelle Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the Company “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Caravelle Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Caravelle Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Subsidiaries. Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the AcquirorCaravelle Companies, Subon the one hand, the Company or its Subsidiaries and a third party other than a party to this Agreement after Sponsor, on the Closingother hand, the Company and its Subsidiaries Sponsor may assert the attorney or solicitorattorney-client privilege to prevent the disclosure of confidential communications by Counsel the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC nor the Company nor its Subsidiaries Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the Stockholder Representativesevent that SPAC, PubCo or the Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Caravelle Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Caravelle Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Caravelle Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Caravelle Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Caravelle Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Caravelle Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Xxx Xx Law Offices LLC (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Caravelle Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
(g) SPAC further agrees that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Caravelle Companies, or PubCo or the Acquisition Entities or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised Parties, shall be controlled by Surviving Corporation on behalf of the Caravelle Companies and shall not pass to or be claimed by SPAC. All Company Deal Communications that are attorney-client privileged (the “Privileged Company Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Surviving Corporation and the Company, shall be controlled by Surviving Corporation on behalf of the Company and shall not pass to or be claimed by SPAC; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between SPAC or the Caravelle Companies, PubCo or the Acquisition Entities, on the one hand, and a third party other than Sponsor, on the other hand, SPAC or the Caravelle Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications to such third party; provided, however, that neither SPAC nor the Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the event that SPAC or the Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Company Deal Communications, SPAC shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Surviving Corporation in writing (including by making specific reference to this Section 11.8) so that Surviving Corporation can seek a protective order and SPAC agrees to use all commercially reasonable efforts to assist therewith.
(i) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only Surviving Corporation and the Company Advised Parties shall hold such property rights and Prior Company Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Company Deal Communications by reason of any attorney-client relationship between Prior Company Counsel, on the one hand, and the Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(j) SPAC agrees (i) to the extent that SPAC receives or takes physical possession of any Company Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties or any other Person, of the privileges or protections described in this Section 11.18, and (b) SPAC shall not assert any claim that any of the Company Advised Parties or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the attorney-client or other privilege, or by otherwise asserting that SPAC has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the parties hereto Parties that the Stockholder Representatives may retain existing special counsel to the Company has retained White & Case LLP (“CounselW&C”) to act as its counsel in connection with the transactions contemplated herebyhereby and that W&C has not acted as counsel for any other Party in connection with the transactions contemplated hereby and that none of the other Parties has the status of a client of W&C for conflict of interest or any other purposes as a result thereof. The Acquiror Parent and Merger Sub hereby agree that, in the event that a dispute arises after the Closing between Parent or the Acquiror Surviving Corporation, on the one hand, and Sub and any former Equity Holder of the Stockholder RepresentativesCompany or the Stockholders’ Representative, Counsel W&C may represent any such former Equity Holder or the Stockholder Representatives Stockholders’ Representative, as applicable, in such dispute even though the interests of such former Equity Holder or the Stockholder Representatives Stockholders’ Representative, as applicable, may be directly adverse to the Acquiror, SubParent, the Company Surviving Corporation or its Subsidiaries, and even though Counsel W&C may have represented the Company or its the Company Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, SubParent, the Company Surviving Corporation or its Subsidiaries. Acquiror Parent and Merger Sub further agree that, as to all communications among CounselW&C, the Company, its Subsidiaries the Company Subsidiaries, the Stockholders’ Representative and the Stockholder Representatives Equity Holders that primarily relate in any way to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Company and, from and after the Effective Time, the former Equity Holders of the Company, and may be controlled only by the Stockholder Representatives them and shall not pass to or be claimed by the Acquiror, SubParent, the Company Surviving Corporation or its Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubParent, the Company Surviving Corporation or its Subsidiaries Subsidiaries, on the one hand, and a third party other than a party Party to this Agreement after the Closing, on the Company other hand, the Surviving Corporation and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel W&C to such third party; provided, however, that neither the Company Surviving Corporation nor its Subsidiaries may waive such privilege without the prior written consent of the Stockholder RepresentativesStockholders’ Representative.
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Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company (“Counsel”) have retained Xxxxxxx Procter LLP to act as its the Representatives’ counsel in connection with the transactions contemplated hereby. The Acquiror Parent and Sub Acquisition Subsidiary hereby agree that, in the event that a dispute arises after the Closing between the Acquiror Parent and Sub its Subsidiaries on the one hand, and the Stockholder RepresentativesRepresentatives and the Unitholders on the other hand, Counsel Xxxxxxx Procter LLP may represent the Stockholder Representatives and Unitholders in such dispute even though the interests of the Stockholder Representatives and Unitholders may be directly adverse to the AcquirorParent, Sub, the Company or and its Subsidiaries, and even though Counsel Xxxxxxx Procter LLP may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquiror, Sub, the Surviving Company or its Subsidiaries. Acquiror Parent and Sub Acquisition Subsidiary further agree that, as to all communications among CounselXxxxxxx Procter LLP, the Company, its Subsidiaries and Subsidiaries, the Stockholder Representatives and/or any Unitholder that relate in any way specifically and solely to the transactions contemplated by this Agreement, the attorney or solicitorattorney-client privilege and the expectation of client confidence as the same relate or apply to any specific communications as between the Company or any Subsidiary of the Company and Xxxxxxx Procter LLP belongs to the Stockholder Representatives and the Unitholders and the same may be controlled by the Stockholder Representatives and Unitholders and shall not pass to or be claimed by the AcquirorParent, SubAcquisition Subsidiary, the Surviving Company or any of its Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, SubParent, the Surviving Company or and its Subsidiaries on the one hand and a third party other than the Representatives or a party to this Agreement after Unitholder, on the Closingother hand, Parent, the Surviving Company and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Counsel to such third party; provided, however, that neither the Company nor its Subsidiaries may waive such privilege without the prior written consent of the Stockholder Representatives.
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Samples: Agreement and Plan of Merger (Memc Electronic Materials Inc)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company (“Counsel”a) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub hereby agree that, in the event that If a dispute arises after the Closing between the Acquiror and Sub Purchaser or the Company (on the one hand) and the Stockholder RepresentativesStockholders (on the other hand), Counsel Gardere Xxxxx Xxxxxx LLP ("Company Counsel") may represent the Stockholder Representatives Stockholders in such dispute even though the interests of the Stockholder Representatives Stockholders may be directly adverse to the Acquiror, Sub, the Company or its SubsidiariesCompany, and even though Company Counsel may have represented the Company or its Subsidiaries in a matter substantially related to such dispute, dispute or may be handling ongoing matters for the Acquiror, SubCompany. As to all communications between or among Company Counsel, the Company or its Subsidiaries. Acquiror and Sub further agree that, as to all communications among Counsel, the Company, its Subsidiaries and the Stockholder Representatives Stockholders that relate in any way to the transactions contemplated by this Agreementherein, the attorney or solicitorattorney-client privilege and the expectation of client confidence belongs to the Stockholder Representatives Stockholders and may be controlled by the Stockholder Representatives Stockholders, and shall not pass to or be claimed or controlled by the AcquirorCompany; provided, Subhowever, that the Company Stockholders shall not waive such attorney-client privilege other than to the extent appropriate in connection with the enforcement or defense of its Subsidiariesrights or obligations existing under this Agreement. Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror, Sub, Purchaser or the Company or its Subsidiaries and a third party Person other than a party to this Agreement the Stockholders after the Closing, the Company and its Subsidiaries may assert the attorney or solicitorattorney-client privilege to prevent disclosure of confidential communications by Company Counsel to such third partyPerson; provided, however, that neither the Company nor its Subsidiaries may not waive such privilege without the prior written consent of the Stockholder RepresentativesStockholders, which consent shall not be unreasonably withheld, conditioned, or delayed.
(b) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, shareholders, members, managers, partners, officers, employees, and Affiliates, that after the Closing, it is possible that Company Counsel will represent either or both of the Stockholders and/or their Affiliates or other related Persons (individually and collectively, the "Seller Group") in connection with the transactions contemplated herein, and any claims made pursuant to this Agreement or other documents executed in connection with the transactions contemplated herein. The Purchaser and the Company hereby agree that Company Counsel (or any successor thereof) may represent the Seller Group in the future in connection with issues that may arise under this Agreement, the other documents executed in connection with the transactions contemplated herein and any claims that may be made thereunder pursuant to this Agreement or the other documents executed in connection with the transactions contemplated herein. Company Counsel (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, shareholder, member, manager, partner, officer, employee, representative, or Affiliate of the Seller Group in connection with any claim or obligation arising out of or relating to this Agreement or the transactions contemplated herein or therein. Each of the parties consents to such representation and waives, and shall cause its Affiliates to waive, any conflict of interest arising therefrom. Each party 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 with this waiver.
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