Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions. (b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.
Appears in 1 contract
Sources: Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the parties hereto that ACAS, ACEI, ACEII, the Company and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates Securityholder Representative have retained PB and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇A▇▇▇▇▇ & ▇▇P▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇AP”) to act as their counsel in connection with the transactions contemplated hereby and Burnetthat 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 Buyer hereby agrees that, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) in the event that a dispute arises after the Closing between the Buyer, ACAS, ACEI, ACEII or the Securityholder Representative, PB or AP may represent ACAS, ACEI, ACEII or the equityholders Securityholder Representative in such dispute even though the interests of ACAS, ACEI, ACEII or the Securityholder Representative may be directly adverse to Buyer, the other Securityholders, the Company or the Subsidiaries, and even though PB or AP, as applicable, may have represented the Company or the Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Buyer, the Company or the Subsidiaries. The Buyer further agrees that, as to all communications among PB or AP and the Company, any Subsidiary, ACAS, ACEI, ACEII and/or the Securityholder Representative that relate in any way to the transactions contemplated by this Agreement, the attorney-client privilege and the expectation of client confidence belongs to the Securityholder Representative and may be controlled by the Securityholder Representative and shall not pass to or be claimed by the Buyer, the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving PartiesSubsidiary. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of Notwithstanding the foregoing, are privileged communications in the event that do not pass to a dispute arises between the Buyer, the Company following the Closing, or any Subsidiary and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties a third party other than a party to this Agreement after the Closing, and SPAC, the Acquisition Entities and the Company agree not or such Subsidiary may assert the attorney-client privilege to assert prevent disclosure of confidential communications by PB or AP to such third party; provided, however, that any privilege has been waived as to neither the Company Counsel Privileged Communicationsnor such Subsidiary may waive such privilege without the prior written consent of PB or AP, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Partiesas applicable. Each of SPAC, the Acquisition Entities PB and the Company, on behalf AP is an intended third party beneficiary of itself this Section 8.06 and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating shall be entitled to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, rely on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionsprovisions hereof.
Appears in 1 contract
Conflicts and Privilege. (a) The Company, SPAC and the Acquisition Entities hereby agree Entities, on behalf of their respective Non-Party successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among (x) the Sponsor, the shareholders or holders of other Equity Securities of SPAC or the Sponsor or any of their respective directors, managers, members, partners, officers, employees, independent contractors or Affiliates (collectively, the “SPAC Group”), on the one hand, and (y) PubCo, the SPAC Merger Surviving Corporation, or the Company Merger Surviving Corporation or any member of the Group Companies, on the other hand, any legal counsel, including Sidley Austin LLP (“Sidley”), Gill, Godlonton & Gerrans (“GGG”), or Ogier (Cayman) LLP (“Ogier”), that represented SPAC. the Sponsor and/or any other member of the SPAC Group prior to the Closing, may represent the Sponsor or any other member of the SPAC Group, in such dispute even though the interests of such Persons may be directly adverse to PubCo, the SPAC Merger Surviving Corporation, the Company Merger Surviving Corporation, or any member of the Group Companies, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo, the SPAC Merger Surviving Corporation, the Company Merger Surviving Corporation, any Group Company, the Sponsor or any other member of the SPAC Group. No party hereto shall seek to or have Sidley disqualified from any such representation with respect to this Agreement or the Transactions based upon the prior representation of SPAC or any of the other member of the SPAC Group by Sidley. The parties hereto hereby waive any potential conflict of interest arising from such prior representation and each party hereto shall cause its respective Affiliates to consent to waive any potential conflict of interest arising from such representation. Each party hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that such party has consulted with counsel in connection therewith. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (all such partiesincluding, after the Closing, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities SPAC Merger Surviving Corporation and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interestMerger Surviving Corporation), breach of duty or any other objection arising from or relating further agree that, as to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all legally privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Transaction Documents or the Transactions contemplated hereby Transactions) between or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. among SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and OslerSidley, GGG or Ogier, on the other hand, made the attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to the SPAC Group after the Closing, and shall not pass to or be claimed or controlled by PubCo, the SPAC Merger Surviving Corporation, or the Company Merger Surviving Corporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or the Sponsor under a common interest agreement shall remain the privileged communications or information of PubCo and the Company Merger Surviving Corporation.
(b) The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among (x) the SPAC Group, on the one hand, and (y) PubCo, the Company, the SPAC Merger Surviving Corporation, the Company Merger Surviving Corporation or any member of the Group Companies, on the other hand, any legal counsel, including Greenberg Traurig, LLP (“GT”) or Appleby (Cayman) Ltd. (“Appleby”) that represented the Company prior to the Closing may represent the Company or any other member of the Group Companies, in such dispute. No party hereto shall seek to or have GT disqualified from any such representation with respect to this Agreement or the Transactions based upon the prior representation of the Company or any of the other Group Companies by GT. The parties hereto hereby waive any potential conflict of interest arising from such prior representation and each party hereto shall cause its respective Affiliates to consent to waive any potential conflict of interest arising from such representation. Each party hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that such party has consulted with counsel in connection therewith. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Closing, the SPAC Merger Surviving Corporation and the Company Merger Surviving Corporation), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Transaction Documents or the Transactions contemplated hereby Transactions) between or thereby, or among any matter relating to any member of the foregoingGroup Companies, are privileged communications that do not pass to SPAC, PubCo or on the Company following the Closingone hand, and instead surviveGT or Appleby, remain with and are controlled by on the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPACother hand, the Acquisition Entities attorney/client privilege and the Company, together with any expectation of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of client confidence shall survive the SPAC Counsel Privileged Communications, whether located in Mergers and belong to the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties Group Companies after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Acquisition Entities Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Sponsor, on behalf of their respective Non-Party Affiliates the one hand, and each of their respective successors and assigns SPAC or the Company, on the other hand, (all such parties, i) any legal counsel (including Hogan Lovells US LLP) that represented SPAC or Sponsor prior to the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP Closing (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and Burneteven though such counsel may have represented SPAC prior to the 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 (“BD&PPrior Company Counsel”) may represent the equityholders Company, SPAC or any of their respective Affiliates in such dispute even though the interests of SPAC may be directly adverse to Sponsor, and even though such counsel may have represented the Company prior to the Closing in a matter substantially related to such dispute.
(b) The Company further agrees, on 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 format whatsoever between or among any of Prior SPAC Counsel, SPAC or Sponsor, or any of their respective Representatives that relate in any way to the 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 “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, 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 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, the Company or their respective Affiliates, on the one hand, and a third party other than Sponsor, on the other hand, Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that none of SPAC, the Company nor their respective Affiliates may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of Sponsor. In the event that SPAC, the Company or any of their respective directorsAffiliates 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, membersSPAC shall, partnersas promptly as reasonably practicable after becoming aware thereof, officersnotify Sponsor in writing so that Sponsor can (at the sole cost and expense of Sponsor) seek a protective order, employees or Affiliates (other than and SPAC, the Acquisition Entities or Company and their respective SubsidiariesAffiliates agree to use commercially reasonable efforts (at the sole cost and expense of Sponsor) to assist therewith.
(collectively, d) To the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries extent that files or other Company materials maintained by Prior SPAC Counsel Waiving Partiesconstitute property of its clients, only Sponsor shall hold such property rights and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Prior SPAC Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) shall have no duty to reveal or disclose any conflict of interest, breach of duty such files or other materials or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation Privileged SPAC Deal Communications by reason of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, any attorney-client relationship between the Company and its Subsidiaries or any member of the Company Counsel WP GroupPrior SPAC Counsel, on the one hand, and each SPAC, the Company or any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Ptheir respective Affiliates after the Closing, on the other hand, made prior so long as such files or other materials would be subject to the Closing a privilege or protection if they were being requested in connection with the negotiationa proceeding by an unrelated third party.
(e) SPAC agrees on behalf of itself and, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following after the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities on behalf of SPAC and the Company, together with any of their respective Affiliates(i) to the extent that SPAC or, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that receives or takes physical possession of any privilege has been waived as to the Company Counsel Privileged SPAC Deal Communications, by virtue of the Transactions.
(bA) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders physical possession or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”)receipt shall not, in each caseany way, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty be deemed a waiver by Sponsor or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member Person of the SPAC Counsel WP Group, on the one handprivileges or protections described in this Section 11.18, and each of Wachtell Lipton and Osler(B) neither SPAC nor, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPACthe 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 Acquisition Entities and Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC or, after the Closing, the Company agree have the right to waive the attorney-client or other privilege and (iii) not to assert that any privilege has been waived as seek to obtain the SPAC Deal Communications from Prior SPAC Counsel Privileged Communications, so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by virtue of the Transactionsan unrelated third party.
Appears in 1 contract
Sources: Business Combination Agreement (Plum Acquisition Corp. III)
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the parties hereto that ACAS, ACEI, ACEII, the Company and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that Representative have retained ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇PB”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&PAP”) to act as their counsel in connection with the transactions contemplated hereby 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. Parent hereby agrees that, in the event that a dispute arises after the Closing between Parent, the Company, ACAS, ACEI, ACEII or the Representative, PB or AP may represent ACAS, ACEI, ACEII or the equityholders Representative in such dispute even though the interests of ACAS, ACEI, ACEII or the Representative may be directly adverse to Parent, the other Stockholders, the Company or its Subsidiaries, provided, that PB or AP, as applicable, has not represented and is not then currently representing the Company or its Subsidiaries in a matter related to such dispute. Parent further agrees that, as to all communications among PB or AP and the Company, any Subsidiary of the Company, ACAS, ACEI, ACEII and/or the Representative that primarily relate to the transactions contemplated by this Agreement, the attorney-client privilege and the expectation of client confidence belongs to the Representative and may be controlled by the Representative and shall not pass to or be claimed by Parent, the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective its Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of Notwithstanding the foregoing, are privileged communications in the event that do not pass to a dispute arises between Parent, the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with or any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company its Subsidiaries and its Subsidiaries, in any Action against or involving any of the parties a third party other than a party to this Agreement after the Closing, and SPAC, the Acquisition Entities and the Company agree not or such Subsidiary may assert the attorney-client privilege to assert prevent disclosure of confidential communications by PB or AP to such third party; provided, however, that any privilege has been waived as to neither the Company Counsel Privileged Communicationsnor such Subsidiary may waive such privilege without the prior written consent of PB or AP, by virtue of the Transactions.
(b) Each of SPACas applicable, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such partieswhich consent shall not be unreasonably withheld, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders conditioned or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Partiesdelayed. Each of SPAC, the Acquisition Entities PB and the Company, on behalf AP is an intended third party beneficiary of itself this Section 9.4 and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating shall be entitled to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, rely on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionsprovisions hereof.
Appears in 1 contract
Sources: Merger Agreement (Bankrate, Inc.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree Buyer, on behalf of their respective Non-Party itself and its Affiliates and each of their respective successors and assigns (all such partieswhich, the “Company Counsel Waiving Parties”)for this purpose, that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of shall be deemed to include the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, and the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or therebyagrees that, notwithstanding its any current or prior representation of the Company and its the Subsidiaries or other Company Counsel Waiving Partiesby Sidley Austin LLP, Sidley Austin LLP shall be allowed to represent Seller and each any of SPAChis Affiliates in any matters and disputes adverse to Buyer, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) and/or any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees Subsidiary that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, either are existing on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, Effective Date or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located arise in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Partiesfuture. Each of SPAC, the Acquisition Entities and the CompanyBuyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the SPAC Counsel Waiving PartiesCompany and the Subsidiaries) hereby waives any claim that Buyer, hereby consents thereto and irrevocably waives (and will not assert) the Company or any Subsidiary has or may have that Sidley Austin LLP has a conflict of interestinterest or is otherwise prohibited from engaging in such representation and agrees that, breach of duty if a dispute arises after the Closing between Buyer, the Company or any other objection arising from Subsidiary and Seller or relating any of his Affiliates, then Sidley Austin LLP may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Wachtell Lipton’s Buyer, the Company and/or such Subsidiary and even though Sidley Austin LLP may have represented the Company or ▇▇▇▇▇’▇ prior representation such Subsidiary in a matter substantially related to such dispute. Buyer, on behalf of SPAC itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications between or other SPAC Counsel Waiving Parties. Each of SPACamong Sidley Austin LLP and Seller, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees any Subsidiary and/or any of their respective Affiliates that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made occur prior to the Closing, in connection with the negotiationattorney-client privilege and the expectation of client confidence belongs to Seller and may be controlled by Seller and shall not pass to or be claimed by Buyer, preparation, execution, delivery and performance under, the Company or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of Subsidiary. Notwithstanding the foregoing, are privileged communications that do not pass to SPACif a dispute arises between Buyer, PubCo or the Company following the Closing, or any Subsidiary and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any a third party other than Seller or an Affiliate of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties Seller after the Closing, and SPACthen the Company or any such Subsidiary (to the extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLP; provided that if the Company or the Subsidiaries elect to waive such privilege, the Acquisition Entities and Company or the Company agree not to assert that any privilege has been waived Subsidiaries, as to the SPAC Counsel Privileged Communicationsapplicable, by virtue shall provide Seller with reasonable advance notice of the Transactionssuch waiver.
Appears in 1 contract
Sources: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. (a) SPAC Each of the Parties acknowledges and the Acquisition Entities hereby agree on behalf agrees that Steptoe & ▇▇▇▇▇▇▇ LLP and The Law Office of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP PC (collectively, “▇▇▇▇▇▇ ▇▇▇▇▇▇▇Counsel”) have acted as counsel to Company, Company Subsidiary, Seller, the Non-Target Parties and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders each of the shareholders of Seller in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby.
(a) Buyer hereby consents and agrees to, and agrees to cause, Company or and Company Subsidiary to consent and agree to, Counsel representing Seller, the Trusts (including, without limitation, their respective trustees and beneficiaries) and/or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) Non-Target Parties (collectively, the “Seller Parties”) after the Closing, including, without limitation, with respect to disputes in which the interests of the Seller Parties may be directly adverse to Buyer and its subsidiaries (including Company or Company Subsidiary). In connection with the foregoing, Buyer hereby irrevocably waives and agrees not to assert, and 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 WP Group”), in each case, solely to the Seller Parties in connection with any Action or obligation such representation. Notwithstanding the foregoing, this consent and waiver of the right to assert any conflict of interest is solely limited to matters arising out in connection with the negotiation and documentation of or relating to this Agreement, the Related Agreements and the transactions contemplated hereby and thereby. Nothing in this Section 9.12 shall constitute a waiver of any Ancillary Document 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 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 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 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 Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company Trusts (including their respective trustees and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Groupbeneficiaries), on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&PCounsel, on the other hand, made prior 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 Closing in connection with Trusts (and not Company or Company Subsidiary) and may be controlled by Seller and the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or Trusts. Without limiting the Transactions contemplated hereby or thereby, or any matter relating to any generality of the foregoing, are privileged communications that do not pass to the Company following the Closing, upon and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPACSeller, the Acquisition Entities Trusts and their Affiliates (and not Company or Company Subsidiary) shall be the sole holders of the attorney-client privilege with respect to the negotiation and documentation of this Agreement and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one handRelated Agreements, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the neither Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver nor Company Subsidiary shall be a holder thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Everbridge, Inc.)
Conflicts and Privilege. (a) SPAC Each of the parties to this Agreement hereby agrees, on its own behalf and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates its stockholders, directors, officers, employees and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”)affiliates, that G▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & T▇▇▇▇▇▇▇ , LLP (“G▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) may serve as counsel to the Company in connection with the negotiation, preparation, execution and Burnetdelivery of this Agreement and the Ancillary Agreements and the consummation of the Transactions, ▇and that, following consummation of the Transactions, G▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the serve as counsel to any Indemnifying Stockholder, any Company Stockholder or any stockholder, director, officer, employee or affiliate of their respective directorsany of Indemnifying Stockholder or any Company Stockholder any action, members, partners, officers, employees suit or Affiliates (other than SPAC, the Acquisition Entities proceeding directly or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation indirectly arising out of or relating to this Agreement, any the Ancillary Document Agreements or the Transactions contemplated hereby or therebyto interpret, apply or enforce this Agreement, the Ancillary Agreements or the Transactions or for recognition or enforcement of any judgment relating thereto or any other matter, notwithstanding its prior such representation (or continued representation) of the Company and its Subsidiaries or other Company Counsel Waiving Partieseach of the parties to this Agreement hereby consents thereto and waives any conflict of interest arising therefrom, and each of SPAC, the Acquisition Entities and the Company on behalf such parties shall cause any of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) its respective affiliates to consent to waive any conflict of interest, breach of duty or any other objection interest arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior such representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled fullest extent permitted by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the TransactionsLaw.
(b) Each of SPACthe Parent Entities further agrees that, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (as to all such parties, the “SPAC Counsel Waiving Parties”), that communications among G▇▇▇▇▇▇▇▇, Liptonthe Company, ▇▇▇▇▇ & ▇▇▇▇ the Indemnifying Stockholders or the Company Stockholders that relate in any way to this Agreement, the Ancillary Agreements or the Transactions, the attorney-client privilege and the expectation of client confidence belongs to the relevant Indemnifying Stockholders or Company Stockholders and may be controlled by such Indemnifying Stockholders or Company Stockholders and shall not pass to or be claimed by Parent, Merger Sub or the Surviving Company.
(“c) Notwithstanding the foregoing, in the event that a dispute arises between Parent, Merger Sub or the Surviving Company, on the one hand, and any Third Party after the Effective Time, the Surviving Corporation may assert the attorney-client privilege to prevent disclosure of confidential communications by G▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) to such Third Party; provided that the Surviving Company may represent not waive such privilege without the shareholders or holders of other equity interests prior written consent of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Relevant Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsInsiders.
Appears in 1 contract
Sources: Merger Agreement (Vivakor, Inc.)
Conflicts and Privilege. (a) SPAC Each of the parties hereto acknowledges and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), agrees that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇Tonkon”) has acted as counsel to the Company, Shareholder Representative, Seller, and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders each of the Shareholders in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby.
(a) Buyer hereby consents and agrees to, and agrees to cause, the Company or to consent and agree to, Tonkon representing the Shareholder Representative, Seller, and/or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) Shareholders (collectively, the “Seller Parties”) after the Closing, including, without limitation, with respect to disputes in which the interests of the Seller Parties may be directly adverse to Buyer and its subsidiaries (including the Company). In connection with the foregoing, Buyer hereby irrevocably waives and agrees not to assert, and agrees to cause the Company Counsel WP Group”)to irrevocably waive and not to assert, in each case, solely any conflict of interest arising from or in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its (i) Tonkon’s prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties(ii) Tonkon’s representation of the Shareholder Representative, Seller and each the Shareholders prior to and after the Closing, including the communication by Tonkon to the Seller Parties in connection with any such representation. Notwithstanding the foregoing, this consent and waiver of SPACthe right to assert any conflict of interest is solely limited to matters arising in connection with the negotiation and documentation of this Agreement, the Acquisition Entities Transaction Documents and the transactions contemplated hereby and thereby. Nothing in this Section 10.15 shall constitute a waiver of any attorney-client privilege or any privilege associated with the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives any matter (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&Pthan Tonkon’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPACin connection with this Agreement, the Acquisition Entities Transaction Documents, and the transactions contemplated hereby and thereby, in a manner that would not materially prejudice the Company’s rights and obligations vis a vis third parties), and does not waive or excuse Tonkon from complying with applicable rules of professional conduct regarding the confidentiality of any client information of the Company other than as it pertains to Tonkon’s representation of the Company in connection with this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby.
(b) In addition, all communications involving attorney-client confidences between the Company, for itself and Seller, the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written Shareholders or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP GroupShareholder Representative, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&PTonkon, on the other hand, made prior in the course of the negotiation and documentation of this Agreement and the Transaction Documents shall be deemed to be attorney-client confidences that belong solely to the Closing in connection with Seller, the negotiationShareholders and the Shareholder Representative (and not the Company) and may be controlled by the Seller, preparation, execution, delivery the Shareholders and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any Shareholder Representative. Without limiting the generality of the foregoing, are privileged communications that do not pass to the Company following the Closing, upon and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPACthe Seller, the Acquisition Entities Shareholders and the Shareholder Representative and their Affiliates (and not the Company) shall be the sole holders of the attorney-client privilege with respect to the negotiation and documentation of this Agreement and the Transaction Documents, and the Company agree shall not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactionsbe a holder thereof.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Buyers and the Acquisition Entities hereby Seller agree on behalf that, notwithstanding any current or prior representation of their respective Non-Party Seller or its Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇TE”), TE will be allowed to represent Seller or any of its Affiliates (which will no longer include the Transferred Company after the Closing) in any matters and Burnetdisputes, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP including in any matter or dispute adverse to Buyers and their Affiliates (“BD&P”including, after the Closing, the Transferred Company) that either are existing on the date hereof or that arise in the future and relates to this Agreement and the Transaction, and Buyers do hereby, and agree to cause their Affiliates (including, after the Closing, the Transferred Company) to, (a) waive any claim they have or may represent have that TE has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agree that, in the equityholders of event that a dispute arises after the Company Closing between Buyers or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, ) and each Seller or any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, its Affiliates (on the other hand), made prior TE may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Buyers or their Affiliates (including the Closing Transferred Company) and even though TE may have represented the Transferred Company in connection with the negotiation, preparation, execution, delivery and performance undera matter substantially related to such dispute, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents may be handling ongoing matters for Buyers or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the ClosingTransferred Company. Buyers further agree, and instead surviveagrees to cause their Affiliates (including, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPACthe Transferred Company) to agree, the Acquisition Entities and the Company agree not to assert that any privilege has been waived that, as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities all communications among TE and the Company hereby agrees on behalf of their respective Non-Party Affiliates Seller and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or its Affiliates (collectivelyincluding, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, the Transferred Company) that relate in connection with any way to the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, Transaction contemplated by this Agreement, any Ancillary Documents or the Transactions contemplated hereby or therebyattorney-client privilege and the expectation of client confidence belongs to, or any matter relating to any of the foregoingand may be controlled by, are privileged communications that do Seller and will not pass to SPACor be claimed by Buyers or their Affiliates (including, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, the Transferred Company). Accordingly, none of Buyers or their Affiliates (including the Transferred Company) will have access to such communications or to the files of TE relating to the Transaction from and SPACafter the Closing. Notwithstanding the foregoing, if a dispute arises between Parent or their Affiliates (including Holdings or the Transferred Company) and a third party other than a Party to this Agreement after the Closing, the Acquisition Entities Transferred Company may assert the attorney-client privilege to prevent disclosure of confidential communications by TE to such third party; provided, however, that the Transferred Company may not waive such privilege without the prior written consent of Seller. This Section 7.11 will be irrevocable, and no term of this Section 7.11 may be amended, waived or modified, without the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue prior written consent of the TransactionsTE.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Acquiror, Parent and the Acquisition Entities Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Acquiror, Merger Sub and/or Sponsor, on behalf of their respective Non-Party Affiliates the one hand, and each of their respective successors and assigns Parent or the Company, on the other hand, any legal counsel (all such parties, the “Company Counsel Waiving Parties”), that including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, CMS ▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Nabarro Olswang LLP and Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP) that represented Acquiror and/or Sponsor prior to the Closing (“Prior Acquiror Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to Acquiror, and Burneteven though such counsel may have represented Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for Acquiror and/or Sponsor. All communication between or among Prior Acquiror Counsel, on the one hand, and Acquiror, Merger Sub or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating to Acquiror Deal Communications shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by the Company, Acquiror or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by Parent or the Company prior to the Closing with Acquiror or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) Parent further agrees, on behalf of itself and, after the Closing, on behalf of Acquiror and the EMEA Companies, that all communications in any form or format whatsoever between or among any of Prior Acquiror Counsel, Acquiror, Merger Sub 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 “Acquiror 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 Acquiror or the EMEA Companies after the Closing. All Acquiror Deal Communications that are attorney-client privileged (the “Privileged Acquiror 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 Acquiror or the EMEA Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor 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.
(c) Notwithstanding the foregoing, in the event that a dispute arises between Acquiror or the EMEA Companies, on the one hand, and a third party other than Sponsor, on the other hand, Acquiror or the EMEA Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Acquiror Deal Communications to such third party. In the event that Acquiror or the EMEA Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Acquiror Deal Communications, Acquiror shall promptly notify Sponsor in writing (including by making specific reference to this Section 10.18) so that Sponsor can seek a protective order and Acquiror and the EMEA Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior Acquiror Counsel constitute Acquiror Deal Communications that is property of its clients, only Sponsor shall hold such property rights and Prior Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Acquiror Deal Communications by reason of any attorney-client relationship between Prior Acquiror Counsel, on the one hand, and Acquiror or any EMEA 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) Acquiror agrees on behalf of itself and the EMEA Companies after the Closing, (i) to the extent that Acquiror or, after the Closing, the EMEA Companies receives or takes physical possession of any Acquiror 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 10.18, and (b) neither Acquiror nor the EMEA 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 Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Acquiror or any EMEA Company waive the attorney-client or other privilege, or by otherwise asserting that Acquiror or the EMEA Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Acquiror Deal Communications from Prior Acquiror Counsel so long as such Acquiror 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 ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (each a “BD&PPrior Company Counsel”) may represent has acted as counsel to Parent and the equityholders 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, Acquiror hereby irrevocably waives and agrees not to assert, and agrees to cause the EMEA Companies after the Closing to irrevocably waive and agree not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company or and (ii) Prior Company Counsel’s representation of any member of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) EMEA Companies (collectively, the “Company Counsel WP GroupAdvised Parties”)) prior to and after the Closing.
(g) Acquiror further agrees, on behalf of itself and, after the Closing, on behalf of the EMEA Companies, that all communications in each caseany form or format whatsoever between or among any of Prior Company Counsel, solely the Company, any of the EMEA Companies, or any of their respective Representatives that relate in connection with any Action or obligation arising out way to the negotiation, documentation and consummation of or relating to the Transactions or, beginning on the date of this Agreement, any Ancillary Document or dispute arising under this Agreement (collectively, the Transactions contemplated hereby or thereby, notwithstanding its prior representation of “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company and its Subsidiaries or other Company Counsel Waiving Advised Parties, and each of SPAC, the Acquisition Entities and the Company shall be controlled by Parent on behalf of itself the EMEA Companies and shall not pass to or be claimed by Acquiror or the EMEA Companies after the Closing. 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 Parent, shall be controlled by Parent and shall not pass to or be claimed by Acquiror, the Surviving Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interestor the EMEA Companies after the Closing; provided, breach of duty further, that nothing contained herein shall be deemed to be a waiver by Parent or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of its Affiliates (including, after the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPACClosing, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company EMEA Companies and its Subsidiaries Affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any member of such communications to any third party.
(h) Notwithstanding the Company Counsel WP Groupforegoing, in the event that a dispute arises between Acquiror or the EMEA Companies, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pa third party other than Parent, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents Acquiror or the Transactions contemplated hereby or thereby, or any matter relating EMEA Companies may assert the attorney-client privilege to any prevent the disclosure of the foregoingPrivileged Company Deal Communications to such third party; provided, are privileged communications however, that do not pass neither Acquiror nor the EMEA Companies may waive such privilege with respect to Privileged Company Deal Communications without the Company following prior written consent of Parent. In the Closing, and instead survive, remain with and are controlled event that Acquiror or the EMEA Companies is legally required by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any Governmental Order or otherwise to access or obtain a copy of their respective Affiliates, Subsidiaries, successors all or assigns, agree that no Person may use or rely on any a portion of the Privileged Company Counsel Privileged Deal Communications, whether located Acquiror shall promptly notify Parent in the records or email server of the Company writing (including by making specific reference to this Section 10.18) so that Parent can seek a protective order and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not Acquiror agrees to assert that any privilege has been waived as use all commercially reasonable efforts to the Company Counsel Privileged Communications, by virtue of the Transactionsassist therewith.
(bi) Each To the extent that files or other materials maintained by Prior Company Counsel constitute Company Deal Communications that is property of SPACits clients, the Acquisition Entities only Parent shall hold such property rights and the Prior Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all Counsel shall have no duty to reveal or disclose any such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders files or holders of other equity interests of the Sponsor or of SPAC materials or any Privileged Company Deal Communications by reason of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, attorney-client relationship between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP GroupPrior Company Counsel, on the one hand, and each of Wachtell Lipton and Oslerthe EMEA Companies after the Closing, on the other hand, made prior hand so long as such files or other materials would be subject to the Closing, a privilege or protection if they were being requested in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out a proceeding by an unrelated third party.
(j) Acquiror agrees on behalf of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities itself and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties EMEA Companies after the Closing, and SPAC(i) to the extent that Acquiror or, after the Closing, the Acquisition Entities and EMEA Companies 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 agree Advised Parties or any other Person, of the privileges or protections described in this Section 10.18, and (b) neither Acquiror nor the EMEA Companies after the Closing shall 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 assert that any privilege has been waived as to access or use the SPAC Counsel Privileged Company Deal Communications, including by virtue way of review of any electronic data, communications or other information, or by seeking to have Parent waive the Transactionsattorney-client or other privilege, or by otherwise asserting that Acquiror or the EMEA Companies after the Closing 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. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and It is acknowledged by each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), parties hereto that ▇▇the Sellers’ Representative has retained D▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇DM”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely to act as its counsel in connection with any Action or obligation arising out the transactions contemplated hereby. Buyer hereby agrees that in the event of or relating to a dispute under this Agreement, any the Ancillary Document or Documents and the Transactions documents and instruments contemplated hereby and thereby related to the transactions contemplated hereby or thereby, notwithstanding its prior representation of thereby that arises after the Company and its Subsidiaries or other Company Counsel Waiving Closing between Buyer Indemnified Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ the Sellers’ Representative and BD&PSellers, on the other hand, made DM may represent the Sellers’ Representative and/or Sellers in such dispute even though the interests of the Sellers’ Representative and/or Sellers may be directly adverse to the Buyer Indemnified Parties, and even though DM may have represented the Company 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 obtain the informed consent of the Sellers’ Representative and/or Sellers and the applicable member of the Buyer Indemnified Parties under applicable Laws or applicable ethical standards governing attorney conduct. Buyer further agrees that, as to all communications among DM, the Company, the Sellers’ Representative and/or any Seller that relate in any way to the transactions contemplated hereby or a similar transaction prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Protected Communications”), without any waiver thereof. SPACthe attorney-client privilege and the expectation of client confidence with respect to the Protected Communications (the “Associated Rights”) belong to the Sellers’ Representative and Sellers and may be controlled by the Sellers’ Representative and Sellers and shall not pass to or be claimed by Buyer, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties (after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directorsSubsidiaries; provided, members, partners, officers, employees or Affiliates (collectivelyhowever, the “SPAC Counsel WP Group”)parties hereto expressly agree that the Protected Communications and Associated Rights shall not include any communications at or prior to the Closing among DM, in each casethe Company, solely in connection with the Sellers’ Representative and/or any Action or obligation arising out of or Seller: (i) relating to this Agreement, any Ancillary Document or (A) the Transactions pre-Closing operation by the Company of its business other than the negotiation of the transactions contemplated hereby or thereby, notwithstanding its a similar transaction prior representation of SPAC and its Subsidiaries, to the Closing or other SPAC Counsel Waiving Parties. Each of SPAC, (B) Fraud (whether related to the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member negotiation of the SPAC Counsel WP Grouptransactions 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 one hand, and each of Wachtell Lipton and Oslera third party other than the Sellers’ Representative or a Seller, on the other hand, made Buyer Indemnified Parties may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, however, that Buyer Indemnified Parties may not waive such privilege without the prior written consent of the Sellers’ 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 Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating extent necessary to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together comply with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionssuch order.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Treasure Finders, Inc.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree Buyer, on behalf of their respective Non-Party itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and each its Subsidiaries) agrees that, notwithstanding any current or prior representation of their respective successors and assigns (all such partiesParent, the “Company Counsel Waiving Parties”), that and/or any Subsidiary of the Company by ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇LLP, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall be allowed to represent any or all of Parent and its Affiliates in any matters and disputes adverse to Buyer, the Company, any Subsidiary of the Company and/or their respective Affiliates that either are existing on the date of this Agreement or arise in the future and, in each case, relate to the negotiation, documentation and consummation of this Agreement or the Transactions. Buyer, on behalf of itself and its Affiliates (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”which, for this purpose, shall be deemed to include the Company and the Subsidiaries) hereby (i) waives any claim that Buyer, the Company, any Subsidiary of the Company and Burnet, ▇▇▇▇their respective Affiliates have or may have that ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and (“BD&P”ii) may represent agrees that, if a dispute arises after the equityholders Closing between Buyer, the Company, any Subsidiary of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP GroupAffiliates, on the one hand, and each any or all of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Parent and BD&Pits Affiliates, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, then ▇▇▇▇▇ & ▇▇▇▇▇▇▇ (“LLP may represent any or all of Parent and its Affiliates in such dispute even though the interests of any or all of Parent and its Affiliates may be directly adverse to Buyer, the Company, any Subsidiary of the Company and/or their respective Affiliates and even though ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may have represented the Company and/or any of its Subsidiaries in a matter substantially related to such dispute or may be handling ongoing matters for Buyer, the Company, any Subsidiary of the Company and/or their respective Affiliates. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and its Subsidiaries), agrees that, as to all communications between or among ▇▇▇▇▇ & ▇▇▇▇▇▇”) ▇ LLP and ▇▇▇▇▇Parent, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests Company, any Subsidiary of the Sponsor or of SPAC or Company and/or any of their respective directorsAffiliates that relate to the negotiation, members, partners, officers, employees documentation and consummation of this Agreement or Affiliates (collectivelythe Transactions, the “SPAC Counsel WP Group”)attorney-client privilege and the expectation of client confidence belongs to Parent, in each caseshall be controlled by Parent and shall not pass to or be claimed by Buyer, solely in connection with the Company or any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries. Notwithstanding the foregoing, or other SPAC Counsel Waiving Parties. Each of SPACif a dispute arises between Buyer, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty Company or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each a third party (other than Parent or any of Wachtell Lipton and Oslertheir respective Affiliates), on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPACthen Buyer, the Acquisition Entities and Company or any of its Subsidiaries, to the extent applicable, may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications involving ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP; provided, however, that neither the Company agree not to assert that nor any of its Subsidiaries may waive such privilege has been waived as to without the SPAC Counsel Privileged Communications, by virtue prior written consent of the TransactionsParent.
Appears in 1 contract
Sources: Unit Purchase Agreement (Watts Water Technologies Inc)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and It is acknowledged by each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), parties hereto that ▇the Sellers’ Representative has retained ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇DM”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely to act as its counsel in connection with any Action or obligation arising out the transactions contemplated hereby. Buyer hereby agrees that in the event of or relating to a dispute under this Agreement, any the Ancillary Document or Documents and the Transactions documents and instruments contemplated hereby and thereby related to the transactions contemplated hereby or thereby, notwithstanding its prior representation of thereby that arises after the Company and its Subsidiaries or other Company Counsel Waiving Closing between Buyer Indemnified Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ the Sellers’ Representative and BD&PSellers, on the other hand, made DM may represent the Sellers’ Representative and/or Sellers in such dispute even though the interests of the Sellers’ Representative and/or Sellers may be directly adverse to the Buyer Indemnified Parties, and even though DM may have represented the Company 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 obtain the informed consent of the Sellers’ Representative and/or Sellers and the applicable member of the Buyer Indemnified Parties under applicable Laws or applicable ethical standards governing attorney conduct. Buyer further agrees that, as to all communications among DM, the Company, the Sellers’ Representative and/or any Seller that relate in any way to the transactions contemplated hereby or a similar transaction prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Protected Communications”), without any waiver thereof. SPACthe attorney-client privilege and the expectation of client confidence with respect to the Protected Communications (the “Associated Rights”) belong to the Sellers’ Representative and Sellers and may be controlled by the Sellers’ Representative and Sellers and shall not pass to or be claimed by Buyer, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties (after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directorsSubsidiaries; provided, members, partners, officers, employees or Affiliates (collectivelyhowever, the “SPAC Counsel WP Group”)parties hereto expressly agree that the Protected Communications and Associated Rights shall not include any communications at or prior to the Closing among DM, in each casethe Company, solely in connection with the Sellers’ Representative and/or any Action or obligation arising out of or Seller: (i) relating to this Agreement, any Ancillary Document or (A) the Transactions pre-Closing operation by the Company of its business other than the negotiation of the transactions contemplated hereby or thereby, notwithstanding its a similar transaction prior representation of SPAC and its Subsidiaries, to the Closing or other SPAC Counsel Waiving Parties. Each of SPAC, (B) Fraud (whether related to the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member negotiation of the SPAC Counsel WP Grouptransactions 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 one hand, and each of Wachtell Lipton and Oslera third party other than the Sellers’ Representative or a Seller, on the other hand, made Buyer Indemnified Parties may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, however, that Buyer Indemnified Parties may not waive such privilege without the prior written consent of the Sellers’ 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 Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating extent necessary to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together comply with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionssuch order.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the parties hereto that Seller and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇Representative have retained U▇▇▇▇ & ▇▇▇▇▇▇▇ Berne LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇U&B”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of to act as their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing counsel in connection with the negotiationtransactions contemplated hereby and that U&B 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 U&B for conflict of interest or any other purposes as a result thereof. Parent hereby agrees that, preparationin the event that a dispute arises after the Closing between Parent and the Representative (on behalf of the Stockholders), executionU&B may represent the Representative in such dispute even though the interests of Representative may be directly adverse to Parent, delivery the other Stockholders, the Surviving Entity or its Subsidiaries, and performance undereven though U&B may have represented the Surviving Entity or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for Parent, the Surviving Entity or its Subsidiaries. Parent further agrees that, as to all communications among U&B and the Surviving Entity, any dispute or Action arising out of or relating to, Subsidiary thereof and/or the Representative that relate in any way to the transactions contemplated by this Agreement, any Ancillary Documents the attorney-client privilege and the expectation of client confidence belongs to the Representative and may be controlled by the Representative and shall not pass to or be claimed by Parent, the Transactions contemplated hereby or thereby, Surviving Entity or any matter relating to any of Subsidiary. Notwithstanding the foregoing, are privileged communications in the event that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPACa dispute arises between Parent, the Acquisition Entities Surviving Entity or any Subsidiary and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties a third party other than a party to this Agreement after the Closing, and SPACthe Surviving Entity or such Subsidiary may assert the attorney-client privilege to prevent disclosure of confidential communications by U&B to such third party; provided, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”)however, that ▇▇▇▇▇▇▇▇neither the Surviving Entity nor such Subsidiary may waive such privilege without the prior written consent of U&B, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) as applicable. U&B is an intended third party beneficiary of this Section 10.16 and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating shall be entitled to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, rely on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionsprovisions hereof.
Appears in 1 contract
Sources: Merger Agreement (Universal Business Payment Solutions Acquisition Corp)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree Each Buyer Party, on behalf of their itself and its respective Non-Party Affiliates and each (which, for this purpose, shall be deemed to include the Meritas Companies) agrees that, notwithstanding any current or prior representation of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that Meritas Companies by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP GroupSellers’ Firm”), such Sellers’ Firm shall be allowed to represent the Sellers in each case, solely in connection with any Action or obligation arising out of or relating matters and disputes adverse to such Buyer Party and/or the Meritas Companies that relate to this Agreement, any Ancillary Document Agreement or the Transactions contemplated hereby other Transaction Agreements or therebythe Transaction. Each Buyer Party, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and its respective Affiliates (which, for this purpose, shall be deemed to include the Company Counsel Waiving Parties Meritas Companies) hereby consents thereto and irrevocably (a) waives (and will not assert) any claim that such Buyer Party or any of the Meritas Companies has or may have that any of the Sellers’ Firm has a conflict of interestinterest or is otherwise prohibited from engaging in such representation and (b) agrees that, breach of duty if a dispute arises after the Closing between such Buyer Party or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Meritas Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pa Seller, on the other hand, made prior then the Sellers’ Firm may represent such Seller in such dispute even though the interests of one or more of such Persons may be directly adverse to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, such Buyer Party or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the such Meritas Company and its Subsidiaries, even though the Sellers’ Firm may have represented such Meritas Company in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not a matter substantially related to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Partiesdispute. Each of SPAC, the Acquisition Entities and the CompanyBuyer Party, on behalf of itself and its respective Affiliates (which, for this purpose, shall be deemed to include the SPAC Counsel Waiving PartiesMeritas Companies), hereby consents thereto also agrees that, as to all communications between or among the Sellers’ Firm and irrevocably waives the Sellers and the Meritas Companies (and will not assertwith respect to the Meritas Companies, solely prior to the Closing) and/or any conflict of interest, breach their respective Affiliates that (i) primarily relate to or were otherwise in anticipation of duty the Transaction or any other objection arising from Transaction Agreement, and (ii) do not include advice (other than with respect to or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation in anticipation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, Transaction or any other member Transaction Agreement) regarding the business, operations, assets, liabilities (actual or contingent, including pending or threatened actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees and rulings) and properties of the SPAC Counsel WP GroupMeritas Companies, the attorney-client privilege and the expectation of client confidence belongs to the Sellers and may be controlled by the Sellers and shall not pass to or be claimed by such Buyer Party or the Meritas Companies. Notwithstanding the foregoing, if a dispute arises between the Buyer Parties or any of the Meritas Companies, on the one hand, and each of Wachtell Lipton a third party other than (and Oslerunaffiliated with) a Seller, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the then such Meritas Company agree not to assert that any privilege has been waived as (to the SPAC Counsel Privileged Communications, extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by virtue of the TransactionsSellers’ Firm.
Appears in 1 contract
Sources: Transaction Agreement (Nord Anglia Education, Inc.)
Conflicts and Privilege. (a) SPAC Each of the Parties hereto acknowledges and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), agrees that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) has acted as counsel to the Company Entities, their Subsidiaries and Burnetthe Seller in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby. The Purchaser hereby consents and agrees to, and irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with, and agrees to cause the Company Entities and their Subsidiaries to consent and agree to and irrevocably waive and not assert any conflict of interest arising from or in connection with, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent representing the equityholders Seller after the Closing, including with respect to disputes in which the interests of the Company or any of their respective directors, members, partners, officers, employees or Seller may be directly adverse to the Purchaser and its Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of including the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company their Subsidiaries). The Purchaser further agrees, on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interestand, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of the Company Entities and their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”)Subsidiaries, that ▇all communications in any form or format whatsoever between or among any of ▇▇▇▇▇▇▇, Liptonthe Seller, the Company Entities and/or any of their Subsidiaries, or any of their respective directors, officers, employees or other representatives that relate in any way to the negotiation, documentation and consummation of the Transaction (collectively, the “Deal Communications”) shall be deemed to be retained and owned by Seller, shall be controlled by Seller, and shall not pass to or be claimed by the Purchaser, the Company Entities or any of their Subsidiaries. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Seller, shall be controlled by Seller and shall not pass to or be claimed by Purchaser, the Company Entities or any of their Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Purchaser, any Company Entity or a Subsidiary, on the one hand, and a third party other than the Seller, on the other hand, the Purchaser, the Company Entities or the Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such - 52 - third party; provided, however, that none of the Purchaser, the Company Entities or any Subsidiary may waive such privilege without the prior written consent of Seller. In the event that the Purchaser, any Company Entity or any of their Subsidiaries is legally required by Order or otherwise to access or obtain a copy of all or a portion of the Deal Communications, the Purchaser shall promptly (and, in any event, within five (5) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective order and the Purchaser agrees to use all commercially reasonable efforts (at the sole expense of Seller) to assist therewith. To the extent that files or other materials maintained by ▇▇▇▇▇▇▇ & constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇▇▇▇ (“shall have no duty to reveal or disclose any such files or other materials or any Privileged Deal Communications by reason of any attorney-client relationship between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Oslerany Company Entity or its Subsidiaries, on the other hand. The Purchaser agrees that it will not, made prior to and that it will cause the ClosingCompany Entities and their Subsidiaries not to, in connection with (i) intentionally access or use the negotiationPrivileged Deal Communications, preparationincluding by way of review of any electronic data, execution, delivery and performance undercommunications or other information, or any dispute by seeking to have Seller waive the attorney-client or Action arising out of other privilege, or relating to, this Agreementby otherwise asserting that the Purchaser, any Ancillary Documents Company Entity or the Transactions contemplated hereby or thereby, or any matter relating to any of the Company Entities’ Subsidiaries has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Privileged Deal Communications from ▇▇▇▇▇▇▇. Notwithstanding the foregoing, are Purchaser shall not be in breach of this Agreement solely as a result of inadvertent access to any Privileged Deal Communications. Seller acknowledges and agree that, except as otherwise set forth above relating to the Privileged Deal Communications, all other confidential and privileged communications that do not pass information relating to SPAC, PubCo or the Company Entities and its Subsidiaries belong to the Company Entities and the Subsidiaries and, following the Closing, and instead survive, remain Purchaser shall have full rights with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereofrespect thereto. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely [Signatures on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.Next Page]
Appears in 1 contract
Sources: Stock Purchase Agreement
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree The Parties, on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such partiesincluding, after the Amalgamation Effective Time, the “Company Counsel Waiving Parties”Amalgamated Company), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP hereby agree that, in the event a dispute with respect to this Agreement, any other Transaction Document or the Transactions arises after the Amalgamation Effective Time between or among (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”x) and Burnetthe Sponsor, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders shareholders or holders of other Equity Securities of Parent or the Company or Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective SubsidiariesAmalgamated Company) (collectively, the “Company Counsel WP Parent Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each (y) the Amalgamated Company and/or any member of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pthe Company Group, on the other hand, made any legal counsel, including Shearman & Sterling LLP (“Shearman”), that represented Parent and/or the Sponsor prior to the Closing Amalgamation Effective Time may represent the Sponsor and/or any other member of the Parent Group in such dispute even though the interests of such Persons may be directly adverse to the Amalgamated Company, and even though such counsel may have represented Parent in a matter substantially related to such dispute, or may be handling ongoing matters for the Amalgamated Company and/or the Sponsor. The Parties, on behalf of their respective successors and assigns (including, after the Amalgamation Effective Time, the Amalgamated Company), further agree that, as to all legally privileged communications prior to the Amalgamation Effective Time (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents other Transaction Document or the Transactions contemplated hereby Transactions) between or therebyamong Parent, the Sponsor and/or any other member of the Parent Group, on the one hand, and Shearman, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Amalgamation and belong to the Parent Group after the Amalgamation Effective Time, and shall not pass to or any matter relating to any of be claimed or controlled by the Amalgamated Company. Notwithstanding the foregoing, are any privileged communications that do not pass or information shared by the Group Companies prior to the Company following Amalgamation Effective Time with Parent, Amalgamation Sub or the Closing, and instead survive, Sponsor under a common interest agreement shall remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors privileged communications or assigns, agree that no Person may use or rely on any information of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactionsapplicable Group Company.
(b) Each of SPACThe Parties, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such partiesincluding, after the Amalgamation Effective Time, the “SPAC Counsel Waiving Parties”Amalgamated Company), that ▇▇▇▇▇▇▇▇hereby agree that, Liptonin the event a dispute with respect to this Agreement, ▇▇▇▇▇ & ▇▇▇▇ the other Transaction Documents or the Transactions arises after the Amalgamation Effective Time between or among (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”x) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests Equity Securities of any of the Sponsor or of SPAC or Group Companies, the Sole Shareholder and/or any of their respective directors, members, partners, officers, employees or Affiliates (including the Amalgamated Company) (collectively, the “SPAC Counsel WP Company Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each (y) any member of Wachtell Lipton and Oslerthe Parent Group, on the other hand, made any legal counsel, including ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP (“▇▇▇▇▇▇ ▇▇▇▇”), that represented any of the Group Companies or the Sole Shareholder prior to the ClosingAmalgamation Effective Time may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to the Amalgamated Company, and even though such counsel may have represented the Group Companies and/or the Sole Shareholder in a matter substantially related to such dispute, or may be handling ongoing matters for the Amalgamated Company, the Group Companies and the Sole Shareholder, on behalf of their respective successors and assigns (including, after the Amalgamation Effective Time, the Amalgamated Company), and further agree that, as to all legally privileged communications prior to the Amalgamation Effective Time (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary other Transaction Documents or the Transactions contemplated hereby Transactions) between or therebyamong the Group Companies, the Sole Shareholder and/or any member of the Company Group, on the one hand, and ▇▇▇▇▇▇ ▇▇▇▇, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Amalgamation and belong to the Company Group after the Amalgamation Effective Time, and shall not pass to or any matter relating to any of be claimed or controlled by the Amalgamated Company. Notwithstanding the foregoing, are any privileged communications that do not pass or information shared by Parent or Amalgamation Sub prior to SPAC, PubCo the Amalgamation Effective Time with the Group Companies or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as Sole Shareholder under a common interest agreement shall belong to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSponsor.
Appears in 1 contract
Sources: Business Combination Agreement (Worldwide Webb Acquisition Corp.)
Conflicts and Privilege. (a) SPAC Recognizing that K&L Gates LLP has acted as legal counsel to Signing Sellers and the Acquisition Acquired Entities hereby agree on behalf prior to and as of their respective Non-Party Affiliates the date of this Agreement and each that K&L Gates LLP may be asked to act as legal counsel to Signing Sellers (or “Replacement Seller” or “Replacement Sellers,” if applicable) after the date of their respective successors and assigns (all such partiesthis Agreement, the “Company Counsel Waiving Parties”)Parties acknowledge that the Acquired Entities have waived, on their own behalf, and Purchaser hereby waives, any conflicts that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely arise in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior K&L Gates LLP’s representation of Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable) after the Company and its Subsidiaries or other Company Counsel Waiving PartiesClosing. The Parties also acknowledge that the Acquired Entities have agreed, and each of SPACPurchaser also agrees, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interestthat, breach of duty or any other objection arising from or relating as to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Groupcommunications among K&L Gates LLP, on the one hand, and each the Acquired Entities (or any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ them), the Signing Sellers (or any of them), or the Acquired Entities and BD&PSigning Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), on the other hand, made prior that relate in any way to this Agreement and to the Closing transactions under or related to this Agreement and are in connection with fact subject to attorney-client privilege, the negotiationattorney-client privilege and the expectation of client confidence belong to Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), preparationshall be owned and controlled by Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do shall not pass to Purchaser or the Company following the Closing, and instead survive, remain with and are controlled Acquired Entities nor be retained by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the TransactionsAcquired Entities.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Enviva Partners, LP)
Conflicts and Privilege. (a) SPAC Each of the Parties acknowledges and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), agrees that ▇▇▇▇▇▇▇ Procter LLP (“▇▇▇▇▇▇▇”) has acted as counsel to the Acquired Companies and the Sellers in connection with the negotiation of this Agreement and consummation of the transactions contemplated by this Agreement.
(b) Purchaser hereby consents and agrees to, and agrees to cause Company Group and their respective Subsidiaries to consent and agree to, ▇▇▇▇▇▇▇ representing Sellers after the Closing, including with respect to disputes in which the interests of the Sellers may be directly adverse to Purchaser and its Subsidiaries (including the Acquired Companies), and even though ▇▇▇▇▇▇▇ may have represented the Acquired Companies in a matter substantially related to any such dispute, or may be handling ongoing matters for the Acquired Companies. Purchaser further consents and agrees to, and agrees to cause the Company Group and their respective Subsidiaries to consent and agree to, the communication by ▇▇▇▇▇▇▇ to the Sellers in connection with any such representation of any fact known to ▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇▇▇▇’▇ prior representation of the Acquired Companies.
(c) In connection with the foregoing, Purchaser hereby irrevocably waives and agrees not to assert, and agrees to cause the Company Group and their respective Subsidiaries to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) ▇▇▇▇▇▇▇’▇ prior representation of the Acquired Companies and (ii) ▇▇▇▇▇▇▇’▇ representation of the Sellers prior to and after the Closing.
(d) Purchaser further agrees, on behalf of itself and, after the Closing, on behalf of the Company Group and their respective Subsidiaries, that all communications in any form or format whatsoever between or among ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, Ogletree, Deakins, ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇ LLP (“Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP and/or any other legal counsel to the Acquired Companies (including, in-house legal counsel) (each a “Counsel”) ), on the one hand, and Burnetthe Acquired Companies and the Sellers, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPACrepresentatives, on the Acquisition Entities other hand, that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement. or their respective Subsidiaries) any dispute arising under this Agreement (collectively, the “Company Counsel WP GroupPrivileged Communications”)) shall be deemed to be attorney-client privileged and that the Privileged Communications and the expectation of client confidence relating thereto belong solely to the Sellers, shall be controlled by the Sellers and shall not pass to or be claimed by Purchaser, or any of the Acquired Companies.
(e) Notwithstanding the foregoing, in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees event that all privileged communications, written or oral, a dispute arises between the Company and its Subsidiaries Group or any member of the Company Counsel WP Grouptheir respective Subsidiaries, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pa third party other than the Sellers, on the other hand, made prior Purchaser, the Company Group or their respective Subsidiaries may assert the attorney-client privilege to prevent the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any disclosure of the foregoingPrivileged Communications to such third party; provided, are privileged communications however, that do not pass to none of the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of or their respective Affiliates, Subsidiaries, successors or assigns, agree Subsidiaries may waive such privilege without the prior written consent of the Sellers. In the event that no Person may use or rely on any of the Company Counsel Group or their respective Subsidiaries is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged Communications, whether located in the records or email server of the Company and its SubsidiariesPurchaser shall immediately (and, in any Action against or involving any of event, within two (2) Business Days) notify the parties after Sellers in writing (including by making specific reference to this Section 6.8(e)) so that the Closing, Sellers can seek a protective order and SPAC, the Acquisition Entities and the Company agree not Purchaser agrees to assert that any privilege has been waived as use all commercially reasonable efforts to the Company Counsel Privileged Communications, by virtue of the Transactionsassist therewith.
(bf) Each To the extent that files or other materials maintained by applicable Counsel with respect to the transactions contemplated by this Agreement constitute property of SPACits clients, only the Acquisition Entities Sellers shall hold such property rights and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all applicable Counsel shall have no duty to reveal or disclose any such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders files or holders of other equity interests of the Sponsor or of SPAC materials or any Privileged Communications by reason of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, attorney-client relationship between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Groupapplicable Counsel, on the one hand, and each of Wachtell Lipton and Oslerthe Company Group or their respective Subsidiaries, on the other hand.
(g) Purchaser agrees that it will not, made prior to and that it will cause the Closing, in connection with the negotiation, preparation, execution, delivery Company Group and performance under, or any dispute or Action arising out of or relating their respective Subsidiaries not to, this Agreement, any Ancillary Documents (i) access or use the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in including by way of review of any electronic data, communications or other information, or by seeking to have the records Sellers waive the attorney-client or email server of SPAC and its Subsidiariesother privilege, in any Action against or involving any of the parties after the Closing, and SPACby otherwise asserting that Purchaser, the Acquisition Entities and Company or any Subsidiary has the Company agree not right to assert that any waive the attorney-client or other privilege has been waived as or (ii) seek to obtain the SPAC Counsel Privileged Communications, by virtue of the TransactionsCommunications from applicable Counsel.
Appears in 1 contract
Sources: Securities Purchase Agreement (Builders FirstSource, Inc.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities Company hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”)that, in each case, solely in connection the event a dispute with any Action or obligation arising out of or relating respect to this Agreement, any Ancillary Document Agreement or the Transactions contemplated hereby arises after the Closing between or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Groupamong SPAC and/or Sponsor, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pthe Company, PubCo, Merger Sub 1, Merger Sub 2, on the other hand, made that Loeb & Loeb LLP (or any of its successors) that represented SPAC and/or Sponsor prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“OslerPrior SPAC Counsel”) may represent Sponsor in such dispute even though the shareholders or holders of other equity interests of the Sponsor or of may be directly adverse to SPAC, and even though such counsel may have represented SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating a matter substantially related to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiariessuch dispute, or other may be handling ongoing matters for SPAC Counsel Waiving Partiesand/or Sponsor. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the All communication between or among Prior SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP GroupCounsel, on the one hand, and each of Wachtell Lipton and OslerSPAC or Sponsor, on the other hand, made prior shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the ClosingSponsor, in connection with shall be controlled by the negotiation, preparation, execution, delivery Sponsor and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any 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 instead survivethe Caravelle Companies, remain with 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 are consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “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 Counsel WP Group 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 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 Caravelle Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC 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, 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 Communications”)SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, without any waiver thereof. 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 ▇▇▇ ▇▇ 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, together with 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 their respective Affiliatesits 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, Subsidiariesin the event that a dispute arises between SPAC or the Caravelle Companies, successors PubCo or assignsthe Acquisition Entities, agree that no Person on the one hand, and a third party other than Sponsor, on the other hand, SPAC or the Caravelle Companies may use or rely on any assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications to such third party; provided, however, that neither SPAC Counsel 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, whether located in the records or email server of SPAC and its Subsidiariesshall as promptly as practicable (and, in any Action against 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 involving 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 parties one hand, and the Caravelle Companies after the Closing, and SPACon 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, the Acquisition Entities and (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company agree 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 assert that any privilege has been waived as to access or use the SPAC Counsel Privileged Company Deal Communications, including by virtue way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the Transactionsattorney-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. (a) SPAC Each of the parties hereto acknowledges and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), agrees that ▇T▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇Tonkon”) has acted as counsel to the Company in connection with the negotiation of this Agreement and Burnetconsummation of the transactions contemplated hereby.
(b) Acquiror hereby consents and agrees that, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) and agrees to cause, the Surviving Corporation to consent and agree that, Tonkon may represent the equityholders Securityholders’ Representative and any of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) Securityholders (collectively, the “Company Counsel WP GroupSeller Parties”), in each case, solely ) after the Closing in connection with issues that may arise under this Agreement or the Escrow Agreement, the administration of the Escrow Shares and any Action claims that may be made thereunder pursuant to this Agreement or obligation the Escrow Agreement, including, for clarity, with respect to such claims in which the interests of the Seller Parties may be directly adverse to Acquiror and its Subsidiaries (including the Surviving Corporation). In connection with the foregoing, Acquiror hereby irrevocably waives and agrees not to assert, and agrees to cause the Surviving Corporation to irrevocably waive and not to assert, any conflict of interest arising out from Tonkon’s representation of or relating the Seller Parties after the Closing. 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, any Ancillary Document or the Transactions Escrow Agreement and the transactions contemplated hereby and thereby. Nothing in this Section 10.11 shall constitute a waiver of any attorney client privilege or thereby, notwithstanding its prior any privilege associated with the Company on any matter (other than Tonkon’s representation of the Company and its Subsidiaries or in connection with this Agreement, the other Company Counsel Waiving PartiesAncillary Agreements, and each the transactions contemplated hereby and thereby, in a manner that would not materially prejudice the Company’s rights and obligations vis-à-vis third parties), and does not waive or excuse Tonkon from complying with applicable rules of SPAC, professional conduct regarding the Acquisition Entities and confidentiality of any client information of the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating than as it pertains to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&PTonkon’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPACin connection with this Agreement, the Acquisition Entities other Ancillary Agreements and the Company, for itself transactions contemplated hereby and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, thereby.
(c) All pre-Closing communications involving attorney client confidences between the Company and its Subsidiaries or any member of the Company Counsel WP GroupSecurityholders, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&PTonkon, on the other hand, made prior in the course of and relating to the Closing in connection with negotiation and documentation of this Agreement and the negotiation, preparation, execution, delivery Ancillary Agreements shall be deemed to be attorney client confidences that belong solely to the Company Securityholders (and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or not the Transactions contemplated hereby or thereby, or any matter relating to any Company) and may be controlled by the Company Securityholders. Without limiting the generality of the foregoing, are privileged communications that do not pass to the Company following the Closing, upon and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, the Company Securityholders and SPACtheir Affiliates (and not the Surviving Corporation) shall be the sole holders of the attorney client privilege with respect to such pre-Closing communications relating to the negotiation and documentation of this Agreement and the Ancillary Agreements, the Acquisition Entities and the Company agree shall not to assert that any privilege has been waived as to be a holder thereof; provided, in the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC event a dispute arises after Closing between Acquiror or any of their respective directors, members, partners, officers, employees or its Affiliates (collectively, including the “SPAC Counsel WP Group”Surviving Corporation), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Oslerany other Person other than the Company Securityholders or their respective Affiliates, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out each of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities Acquiror and the Company, together Surviving Corporation may assert the attorney-client privilege with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not respect to assert that any privilege has been waived as such pre-Closing communications to the SPAC Counsel Privileged Communications, by virtue of the Transactionsprevent disclosure thereof to such Person.
Appears in 1 contract
Sources: Merger Agreement (Cure Pharmaceutical Holding Corp.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, 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 Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any 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 their respective Non-Party Affiliates itself and, after the Closing, on behalf of SPAC, PubCo and each 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 successors Representatives that relate in any way to the negotiation, documentation and assigns consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (all such partiescollectively, the “Company Counsel Waiving PartiesSPAC 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 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 Caravelle Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC 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, 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 ▇▇▇ ▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇together with ▇▇▇ ▇▇▇▇▇▇▇▇ Law Office LLC, “Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and Burnetas counsel to the Company in connection with the negotiation of this Agreement, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP 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 (“BD&P”i) may represent the equityholders Prior Company Counsel’s prior representation of the Company or and (ii) Prior Company Counsel’s representation of any member of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) Caravelle Companies (collectively, the “Company Counsel WP GroupAdvised 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 each caseany way to the negotiation, solely in connection with any Action or obligation arising out documentation and consummation of or relating to the Transactions or, beginning on the date of this Agreement, any Ancillary Document 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 Transactions contemplated hereby or thereby“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, notwithstanding its prior representation 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 Subsidiaries Affiliates of any applicable privileges or other Company Counsel Waiving Partiesprotections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, and each of SPACin the event that a dispute arises between SPAC or the Caravelle Companies, PubCo or the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP GroupEntities, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pa third party other than Sponsor, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents SPAC or the Transactions contemplated hereby or thereby, or any matter relating Caravelle Companies may assert the attorney-client privilege to any prevent the disclosure of the foregoingPrivileged Company Deal Communications to such third party; provided, are privileged communications however, that do not pass neither SPAC nor the Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the Company following prior written consent of Surviving Corporation. In the Closing, and instead survive, remain with and are controlled event that SPAC or the Caravelle Companies is legally required by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any Governmental Order or otherwise to access or obtain a copy of their respective Affiliates, Subsidiaries, successors all or assigns, agree that no Person may use or rely on any a portion of the Privileged Company Counsel Privileged Deal Communications, whether located in the records or email server of the Company and its SubsidiariesSPAC shall as promptly as practicable (and, in any Action against 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 involving any other materials maintained by Prior Company Counsel constitute property of the parties after the Closingits clients, and SPAC, the Acquisition Entities only Surviving Corporation and the Company agree not to assert that any privilege has been waived as to the Advised Parties shall hold such property rights and Prior Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all shall have no duty to reveal or disclose any such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders files or holders of other equity interests of the Sponsor or of SPAC materials or any Privileged Company Deal Communications by reason of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, attorney-client relationship between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP GroupPrior Company Counsel, on the one hand, and each of Wachtell Lipton and Oslerthe Caravelle Companies after the Closing, on the other hand, made prior 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 Closingextent that SPAC receives or takes physical possession of any Company Deal Communications, (a) such physical possession or receipt shall not, in connection with the negotiationany way, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to be deemed a waiver by any of the foregoingCompany Advised Parties or any other Person, are privileged communications that do not pass to SPAC, PubCo of the privileges or the Company following the Closingprotections described in this Section 11.18, and instead survive, remain with and are controlled by the (b) SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without shall not assert any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree claim that no Person may use or rely on any of the SPAC Counsel Privileged 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, whether located in including by way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the records attorney-client or email server of other privilege, or by otherwise asserting that SPAC has the right to waive the attorney-client or other privilege and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and (iii) not to seek to obtain the Company agree not Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to assert that any a privilege has been waived as to the SPAC Counsel Privileged Communications, or protection if they were being requested in a proceeding by virtue of the Transactionsan unrelated third party.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Pacifico Acquisition Corp.)
Conflicts and Privilege. (a) SPAC Buyer and the Acquisition Entities Sellers hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”)that, in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to event a dispute arises after the Closing in connection with the negotiation, preparation, execution, delivery between Buyer or Comfort Care and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇a Seller, ▇▇▇▇▇▇ & Harcourt Snow LLP (“Osler”) may represent such Seller in such dispute even though the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directorssuch Seller may be directly adverse to Comfort Care, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or even though ▇▇▇▇▇’▇ prior representation of SPAC and its SubsidiariesSnow LLP may have represented Comfort Care in a matter substantially related to such dispute, or other SPAC Counsel Waiving Partiesmay be handling ongoing matters for Comfort Care. Each of SPACBuyer further agrees that, as to all communications between ▇▇▇▇▇▇ Snow LLP, Comfort Care and Sellers that relate in any way to the transactions contemplated by this Agreement (a “Privileged Communication”), the Acquisition Entities attorney-client, work product, business strategy or similar protection or privilege and the Company, for itself expectation of client confidence belongs to Sellers and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one handmay be controlled by Sellers, and each shall not transfer, pass to or be claimed or controlled by Comfort Care or Buyer notwithstanding the transfer of Wachtell Lipton and Osler, on the Membership Interests hereunder; provided that Sellers shall not waive such attorney-client privilege other hand, made prior than to the Closing, extent appropriate in connection with the negotiation, preparation, execution, delivery enforcement or defense of their respective rights or obligations existing under this Agreement and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of other Transaction Documents. Notwithstanding the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records event a dispute arises between Buyer or email server of SPAC Comfort Care and its Subsidiaries, in any Action against or involving any of the parties a Person other than a Seller after the Closing, and SPACComfort Care may assert the attorney-client privilege to prevent disclosure of confidential communications by ▇▇▇▇▇▇ Snow LLP to such Person; provided, however, that Comfort Care may not waive such privilege without the Acquisition Entities and prior written consent of Sellers, which consent will not be unreasonably withheld. In the event that Buyer or any of its Affiliates (including any Company agree not or Subsidiary) is legally required to assert that any privilege has been waived as to access or obtain a copy of all or a portion of the SPAC Counsel Privileged Communications, to the extent permitted by virtue of applicable Legal Requirements, then Buyer shall notify the TransactionsSellers’ 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
Sources: Membership Interest Purchase Agreement (Aveanna Healthcare Holdings, Inc.)
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the Parties that the Acquired Companies and Seller have retained McGuireWoods to act as their counsel in connection with the Transactions and that McGuireWoods has not acted as counsel for any other Person in connection with the Transactions and that no other Party or other Person has the status of a client of McGuireWoods in connection with the Transactions for conflict of interest or any other purposes as a result thereof. Buyer and the Acquisition Entities hereby agree Acquired Companies, on behalf of their respective Non-Party Affiliates themselves and each of their respective successors Affiliates, (a) hereby waive any claim they have or may have that McGuireWoods has a conflict of interest in connection with, or is otherwise prohibited from engaging in, such representation and assigns (all such partiesb) agree that, in the “Company Counsel Waiving Parties”), event that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company a dispute arises after Closing between Buyer or any of their respective directors, members, partners, officers, employees or its Affiliates (other than SPACincluding, from and after Closing, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”Acquired Companies), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&PSeller, on the other hand, made prior McGuireWoods may represent Seller in such dispute even though the interest of any such party may be directly adverse to Buyer or any of its Affiliates (including, from and after Closing, the Acquired Companies), and even though McGuireWoods may have represented the Acquired Companies in a matter substantially related to such dispute, or may be handling ongoing matters for the Acquired Companies. Buyer further agrees that, as to all communications between McGuireWoods and Seller that relate in any way to the Closing in connection with Transactions, the negotiationattorney-client privilege, preparation, execution, delivery the expectation of client confidence and performance under, all other rights to any evidentiary privilege belong to Seller and may be controlled by Seller and shall not pass to or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents be claimed by Buyer or the Transactions contemplated hereby or thereby, or any matter relating to any of Acquired Companies. Notwithstanding the foregoing, are privileged communications that do not pass to if a dispute arises between Buyer or the Company following the Acquired Companies and a third party other than a Party after Closing, the Acquired Companies may assert the attorney-client privilege to prevent disclosure of confidential communication by McGuireWoods to such third party; provided, however, that the Acquired Companies may not waive such privilege without the prior written consent of Seller. Seller and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, Buyer further agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company McGuireWoods and its Subsidiaries, in any Action against or involving any partners and employees are third-party beneficiaries of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactionsthis Section 10.4.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the Parties hereto that the Securityholder Representative and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ Majority Stockholder Entity has retained ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) to act as their counsel and Burnetas counsel to the Company in connection with the transactions contemplated hereby. The Purchaser and the Company hereby agree that, in the event that a dispute arises after the Closing between any Purchaser Indemnified Party on the one hand, and the Securityholder Representative and/or the Majority Stockholder Entity on the other hand, with respect to the Transactions, ▇▇▇▇▇▇▇ may represent the Securityholder Representative and the Majority Stockholder Entity in such dispute even though the interests of the Securityholder Representative and the Majority Stockholder Entity may be directly adverse to the Purchaser Indemnified Parties (including the Company and each of its Subsidiaries), and even though ▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of have represented the Company and/or its Subsidiaries in a matter substantially related to such dispute, or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of may be handling ongoing matters for the Company and and/or its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities Subsidiaries. The Purchaser and the Company on behalf further agree, and agree to cause all of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives Company’s Subsidiaries to agree, that, as to all communications, in any form whatsoever, (and will not assertx) any conflict of interest, breach of duty or any other objection arising from or relating to among ▇▇▇▇▇▇ ▇▇, the Company, the Subsidiaries of the Company, the Securityholder Representative and/or any Seller before Closing that relate in any way to the Transactions and (y) ▇▇▇▇▇▇▇, the Securityholder Representative and/or any Seller after Closing (collectively, (x) and (y), the “Communications”), the attorney-client privilege and the expectation of client confidence belongs to the Securityholder Representative and the Majority Stockholder Entity and may be controlled only by the Securityholder Representative and the Majority Stockholder Entity and shall not pass to or be claimed by the Purchaser or any Purchaser Indemnified Party (including the Company and any Subsidiary of the Company). In connection with the foregoing, Purchaser hereby irrevocably waives and agrees not to assert, and agrees to cause the Company and the Company’s Subsidiaries to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (a) ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and and/or the Company, for itself ’s Subsidiaries prior to the Closing with respect to the Transactions and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of (b) ▇▇▇▇▇▇▇’▇ representation of the Stockholder Representative and the Majority Stockholder Entity prior to and after the Closing. To the extent that files or other materials maintained by ▇▇▇▇▇▇▇ constitute property of its clients that are or relate to Communications, only the Stockholder Representative and BD&P, on the Majority Stockholder Entity shall hold such property rights and ▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, materials or any dispute or Action arising out Communications by reason of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Nonattorney-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇client relationship between ▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and OslerPurchaser, the Company or the Company’s Subsidiaries, on the other hand. Purchaser agrees that it will not, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or it will cause the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company’s Subsidiaries not to, together with any of their respective Affiliates, Subsidiaries, successors (i) access or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in including by way of review of any electronic data, communications or other information, or by seeking to have the records Securityholder Representative or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.Majority
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree Buyer, on behalf of their respective Non-Party itself and its Affiliates (which, for this purpose, shall be deemed to include the Company) agrees that, notwithstanding any current or prior representation of the Company and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇Subsidiary by ▇▇▇▇▇ ▇▇& Lardner LLP, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall be allowed to represent Seller and each of its Affiliates in any matters and disputes adverse to Buyer, the Company and/or the Subsidiary that either are existing on the date hereof or arise in the future and relate to this Agreement and the transactions contemplated hereby. Buyer, on behalf of itself and its Affiliates (“▇which, for this purpose, shall be deemed to include the Company and the Subsidiary) hereby (a) waives any claim that Buyer, the Company or the Subsidiary has or may have that ▇▇▇▇▇ ▇▇▇▇▇▇▇”& Lardner LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agrees that, if a dispute arises after the Closing between Buyer, the Company or the Subsidiary and BurnetSeller or any of its Affiliates, ▇▇▇▇then ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“BD&P”) may represent Seller or such Affiliate in such dispute even though the equityholders interests of Seller or such Affiliate may be directly adverse to Buyer, the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, and/or the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of Subsidiary and even though ▇▇▇▇▇ & Lardner LLP may have represented the Company and its Subsidiaries the Subsidiary in a matter substantially related to such dispute or other Company Counsel Waiving Parties, and each of SPACmay be handling ongoing matters for Buyer, the Acquisition Entities and Company and/or the Company Subsidiary. Buyer, on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives its Affiliates (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Companywhich, for itself and the Company Counsel Waiving Partiesthis purpose, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between shall be deemed to include the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”Subsidiary), without any waiver thereof. SPACalso agrees that, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, communications between or among ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”LLP and Seller, the Company, the Subsidiary and/or any of their respective Affiliates that relate in any way to the transactions contemplated hereby and occur prior to the Closing, the attorney-client privilege and the expectation of client confidence belongs to Seller and may be controlled by Seller and shall not pass to or be claimed by Buyer, the Company or the Subsidiary. Notwithstanding the foregoing, if a dispute arises between Buyer, the Company or the Subsidiary and a third party other than Seller or an Affiliate of Seller after the Closing, then the Company or the Subsidiary (to the extent applicable) and ▇▇▇▇▇, ▇may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by ▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent Lardner LLP; provided, however, that the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document Company or the Transactions contemplated hereby or thereby, notwithstanding its Subsidiary may not waive such privilege without the prior representation written consent of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSeller.
Appears in 1 contract
Sources: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. (a) The Company, SPAC and the Acquisition Entities hereby agree Entities, on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Acquisition Closing between or among (all such partiesx) the Sponsor, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent shareholders or holders of other equity interests of SPAC or the equityholders of the Company Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, PubCo or the Acquisition Entities or their respective SubsidiariesSurviving Corporation) (collectively, the “Company Counsel WP Altimeter Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each (y) PubCo, the Surviving Corporation or any member of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pthe Grab Group, on the other hand, made any legal counsel, including Ropes & ▇▇▇▇ LLP (“Ropes”), that represented SPAC or the Sponsor prior to the Acquisition Closing may represent the Sponsor or any other member of the Altimeter Group, in such dispute even though the interests of such Persons may be directly adverse to PubCo or the Surviving Corporation, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo, the Surviving Corporation or the Sponsor. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Transaction Documents or the Transactions transactions contemplated hereby or thereby) between or among SPAC, the Sponsor or any matter relating other member of the Altimeter Group, on the one hand, and Ropes, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to any of the Altimeter Group after the Acquisition Closing, and shall not pass to or be claimed or controlled by PubCo or the Surviving Corporation. Notwithstanding the foregoing, are any privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled or information shared by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, prior to the Acquisition Entities Closing with SPAC or the Sponsor under a common interest agreement shall remain the privileged communications or information of PubCo and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the TransactionsSurviving Corporation.
(b) Each of SPACThe Company, SPAC and the Acquisition Entities and the Company hereby agrees Entities, on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Acquisition Closing between or among (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”x) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo or the Surviving Corporation) (collectively, the “SPAC Counsel WP Grab Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each (y) the Surviving Corporation or any member of Wachtell Lipton and Oslerthe Altimeter Group, on the other hand, made any legal counsel, including Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (“Skadden”) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) that represented the Company prior to the Acquisition Closing may represent any member of the Grab Group in such dispute even though the interests of such Persons may be directly adverse to PubCo and the Surviving Corporation, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo and the Surviving Corporation. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Transaction Documents or the Transactions transactions contemplated hereby or thereby, ) between or among the Company or any matter relating member of the Grab Group, on the one hand, and Skadden or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to any of the Grab Group after the Acquisition Closing, and shall not pass to or be claimed or controlled by PubCo or the Surviving Corporation. Notwithstanding the foregoing, are any privileged communications that do not pass or information shared by SPAC or Sponsor prior to SPAC, the Acquisition Closing with the Company under a common interest agreement shall remain the privileged communications or information of PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSurviving Corporation.
Appears in 1 contract
Sources: Business Combination Agreement (Altimeter Growth Corp.)
Conflicts and Privilege. (a) SPAC The Buyer and the Acquisition Entities hereby Seller agree that, notwithstanding any current or prior representation of the Company, the Seller or their Affiliates by K&L Gates LLP (“K&L Gates”), K&L Gates is permitted to represent any of the Seller or any of its respective Affiliates in any matters or disputes adverse to the Buyer, the Company, or any of their respective Affiliates, whether or not such matter is one in which K&L Gates may have previously advised the Seller or the Company, but in each case arising out of this Agreement or the transactions contemplated hereby, including any matters that exist on the date of this Agreement or may arise in the future and relate to this Agreement or any transactions or documents contemplated by this Agreement. The Buyer and the Seller hereby, including on behalf of their respective Non-Party Affiliates the Company, (i) waive any claim they have or may have that K&L Gates has a conflict of interest or is otherwise prohibited from engaging in such representation and each of their respective successors and assigns (all such partiesii) agree that, if a dispute arises after the “Company Counsel Waiving Parties”)Closing Date between the Buyer, that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP GroupAffiliates, on the one hand, and each any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pthe Seller or any of their respective Affiliates, on the other hand, made prior with respect to the Closing in connection with the negotiationtransactions contemplated hereby, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to K&L Gates may represent any of the foregoing, are privileged communications that do not pass Seller or its Affiliates in the dispute even though the interests of any of such person may be directly adverse to the Company following the ClosingBuyer, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with or any of their respective Affiliates, Subsidiaries, successors Affiliates and even though K&L Gates may have represented the Seller or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communicationsin a matter substantially related to the dispute, whether located in and the records or email server of Buyer will cause the Company to waive any such claims and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactionsmake such agreement.
(b) Each of SPACThe Buyer further agrees that it shall not assert, and following the Acquisition Entities and Closing shall cause the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating not to this Agreementassert, any Ancillary Document claim against K&L Gates in respect of legal services provided to the Company by K&L Gates with respect to the transactions contemplated hereby, whether or not the services relate to the Company or the Transactions contemplated hereby or thereby, notwithstanding Purchased Shares.
(c) The Buyer also further agrees and consents to the disclosure by K&L Gates to the Seller of any information learned by K&L Gates in the course of its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf the Seller and their Affiliates, whether or not such information is subject to the attorney-client privilege or K&L Gates’ duty of itself confidentiality and whether or not the SPAC Counsel Waiving Partiesdisclosure is made before or after the Closing Date.
(d) From and after the Closing Date, hereby the Company will no longer have any attorney-client relationship with K&L Gates, unless K&L Gates is specifically engaged in writing by the Company to represent it after the Closing Date and either the representation involves no conflict of interest with respect to the Seller or the Seller consents thereto and irrevocably waives (and in writing to the engagement. Any such representation by K&L Gates after the Closing Date will not assert) any conflict affect the provisions of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSection 10.13.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Buyer and the Acquisition Entities hereby Company agree on behalf that, notwithstanding any current or prior representation of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ by Stroock & ▇▇Stroock & ▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇Stroock”) and Burnet), ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Stroock shall be allowed to represent Seller or any of its Affiliates in any matters and/or disputes (“BD&P”) may represent or any other matter), including in any matter or dispute adverse to Buyer, the equityholders of the Company Company, or any of their respective directors, members, partners, officers, employees Affiliates that either is existing on the date hereof or Affiliates (other than SPAC, that arises in the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating future and relates to this AgreementAgreement or any of the other Transaction Documents, or any Ancillary Document or of the Transactions transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities Buyer and the Company hereby (a) waive any claim they have or may have that Stroock has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such partiesthat, in the event that a dispute arises after the Closing relating to this Agreement or the other Transaction Documents between Buyer, the “SPAC Counsel Waiving Parties”)Company, that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectivelyon the one hand) and Seller, or any of its Affiliates (on the other hand), Stroock may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Buyer, the “SPAC Counsel WP Group”Company, or any of their respective Affiliates and even though Stroock may have represented the Company in a matter substantially related to such dispute. Buyer and the Company also further agree that, as to all communications among Stroock and the Company, Seller, and their respective Affiliates that relate in any way to the transactions contemplated by the Transaction Documents, the attorney-client privilege and the expectation of client confidence belongs to Seller and shall be controlled by Seller and shall not pass to or be claimed by Buyer or the Company. Notwithstanding the foregoing, in the event that a dispute arises after the Closing between Buyer or the Company (on the one hand) and a third party (on the other hand), in each case, solely in connection with any Action or obligation arising out of or relating other than a party to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following may assert the Closingattorney-client privilege to prevent disclosure of confidential communications by Stroock to such third party and/or may require Seller to assert such privilege; provided, and instead survivehowever, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree may not to assert that any waive such privilege has been waived as to without the SPAC Counsel Privileged Communications, by virtue prior written consent of the TransactionsSeller.
Appears in 1 contract
Sources: Stock Purchase Agreement (Rti International Metals Inc)
Conflicts and Privilege. (a) SPAC From and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to after the Closing in connection with the negotiationDate, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications it is possible that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP LLP. (“OslerCompany Counsel”) will represent Sellers, Real Property Owners or other related Persons (individually and collectively, the “Seller Group”), in connection with the Escrow Amount, the transactions contemplated herein or in the Escrow Agreement, and any claims made pursuant to this Agreement, the Escrow Agreement or other Transaction Documents. Buyers and the Companies hereby agree that Company Counsel (or any successor thereof) may represent the shareholders or holders of 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 equity interests Transaction Documents, the administration of the Sponsor 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 SPAC client confidence with the Companies shall not be claimed to prevent or limit Company Counsel’s representation hereunder; provided, however, that neither the Companies nor Buyers waive such attorney-client privilege. Company Counsel (or any successor thereof) may serve as counsel to all or a portion of the 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 directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving PartiesAffiliates. Each of SPAC, the Acquisition Entities Buyers and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating Companies each consent to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one handsuch representation, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications acknowledges that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereofsuch consent voluntary. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.66 Capital Pumping
Appears in 1 contract
Sources: Interest Purchase Agreement (Concrete Pumping Holdings, Inc.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably The Buyer acknowledges and agrees that all privileged communicationsthe Non-ESOP Sellers and the Seller Representative shall not be precluded from retaining the services of MFS and ESOP Counsel as its legal counsel, written or oraland the ESOP Trustee shall not be precluded from retaining the services of Polsinelli as its legal counsel, in the event of any dispute between the Company and its Subsidiaries Buyer or any member of the Company Counsel WP GroupCompany, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pthe Sellers, on the other hand, made prior to because such dispute concerns the Closing in connection with the negotiation, preparation, execution, delivery and performance under, Contemplated Transactions or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and whether otherwise involving the Company, together with notwithstanding, by itself, any result of their respective Affiliates, Subsidiaries, successors MFS’s or assigns, agree that no Person may use or rely on any ESOP Counsel’s prior representation of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that P▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC the ESOP Trustee. Notwithstanding the sale of the Shares to the Buyer, the 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 MFS, ESOP Counsel or Polsinelli on the other SPAC Counsel Waiving Partieshand, to the extent that the privileged communications directly relate to the Contemplated Transactions (“Privileged Communications”), provided, however, that no Seller or any of its Affiliates or Representatives may waive any such attorney/client privilege or exception of client confidence in connection with any matter involving a third party without the prior written consent of the Buyer. Each of SPACNotwithstanding the foregoing, in the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees event that all privileged communications, written or oral, a dispute arises between SPAC Buyer or its Subsidiaries, or any other member of Affiliates (including the SPAC Counsel WP GroupAcquired Companies), on the one hand, and each of Wachtell Lipton and Oslera third party other than any Seller, on the other hand, made prior Buyer and its Affiliates (including the Acquired Companies) may assert the attorney-client privilege to prevent disclosure of confidential communications to such third 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 Acquired Companies) may waive such privilege with respect to the ClosingPrivileged Communications without the prior written consent of the 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 P▇▇▇▇▇▇▇▇▇’▇ representation of the ESOP Trustee, in connection with the negotiation, preparation, execution, delivery and performance under, Contemplated Transaction or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or efforts to sell the Transactions contemplated hereby or thereby, Shares to the Buyer or any matter relating to any other Person shall be and become the exclusive property of the foregoingSellers, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereofas applicable. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.96760364_21
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Buyer agrees that, notwithstanding any current or prior representation of Intermediate LLC, the Company and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“Subsidiaries by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&PPepper”), Pepper shall be allowed to represent Seller or any of its Affiliates in any matters and disputes (or any other matter), including in any matter or dispute adverse to Buyer, Intermediate LLC, the Company or any Subsidiary that relates to this Agreement and the transactions contemplated hereby (a “Dispute”) and Buyer hereby (a) waives any claim it has or may have that Pepper has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agrees that, in the event that a Dispute arises after the Closing between Buyer, Intermediate LLC, the Company or any Subsidiary and Seller or any of its Affiliates, Pepper may represent Seller or any of its Affiliates in such Dispute even though the equityholders interests of Seller or its Affiliate may be directly adverse to Buyer, Intermediate LLC, the Company or the Subsidiaries and even though Pepper may have represented Intermediate LLC, the Company or the Subsidiaries in a matter substantially related to such Dispute, or may be handling ongoing matters for the Company or the Subsidiaries; provided, however, that that no such representation shall be a waiver of any attorney-client privilege between Intermediate LLC, the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective its Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&PPepper, on the other hand, made prior and Seller shall cause Pepper acting as its counsel to not take any actions or engage in any representation that would affect or be deemed to be such a waiver. Following the Closing, Buyer agrees that it will not (i) request from Pepper or Seller or (ii) use or intentionally access any of the communications among Pepper, Intermediate LLC, the Company or any Subsidiary, and/or Seller relating to the Closing transactions contemplated hereby (the “Communications”) in connection with any Dispute or potential Dispute; provided, however, that nothing contained herein shall prevent Buyer from requesting, using or accessing any Communications in connection with document production requests or discovery in any Legal Proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a Legal Proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Closing, Seller shall be permitted to use the Communications in connection with the negotiationdefense of any Dispute with Buyer, preparationIntermediate LLC, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries; provided, that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 12.13 or in this Agreement shall be deemed to be a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and Seller shall not take any action, or other SPAC Counsel Waiving Parties. Each of SPACcause Pepper to take any action, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) that would reasonably be expected to waive any conflict of interest, breach of duty such privilege or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating protection as to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionsthird party.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Schweitzer Mauduit International Inc)
Conflicts and Privilege. (a) The Company, SPAC and the Acquisition Entities hereby agree Entities, on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Acquisition Closing between or among (all such partiesx) the Sponsor, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent shareholders or holders of other equity interests of SPAC or the equityholders of the Company Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, PubCo or the Acquisition Entities or their respective SubsidiariesSurviving Corporation) (collectively, the “Company Counsel WP Altimeter Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each (y) PubCo, the Surviving Corporation or any member of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pthe Grab Group, on the other hand, made any legal counsel, including Ropes & ▇▇▇▇ LLP (“Ropes”), that represented SPAC or the Sponsor prior to the Acquisition Closing may represent the Sponsor or any other member of the Altimeter Group, in such dispute even though the interests of such Persons may be directly adverse to PubCo or the Surviving Corporation, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo, the Surviving Corporation or the Sponsor. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Transaction Documents or the Transactions transactions contemplated hereby or thereby, ) between or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. among SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Altimeter Group, on the one hand, and each of Wachtell Lipton and OslerRopes, on the other hand, made the attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to the Altimeter Group after the Acquisition Closing, and shall not pass to or be claimed or controlled by PubCo or the Surviving Corporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing, in connection Acquisition Closing with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents SPAC or the Transactions contemplated hereby or thereby, or any matter relating to any of Sponsor under a common interest agreement shall remain the foregoing, are privileged communications that do not pass to SPAC, or information of PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSurviving Corporation.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Parent, Holdco, Merger Sub and the Acquisition Entities hereby agree Company (on behalf of their respective Non-Party Affiliates itself and each its Subsidiaries) agree that, notwithstanding any current or prior representation of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of its Subsidiaries by Stroock & ▇▇▇Stroock & L▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) Stroock), Stroock shall be allowed to represent any Seller, the Representative or any of their respective Affiliates in any matters and/or disputes (or any other matter), including any matter or dispute adverse to Parent, the Company, any Subsidiaries of Parent or the Company, or any of their respective Affiliates that either is existing on the date hereof or that arises in the future and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders relates to this Agreement or any of the other Transaction Documents, or any of the transactions contemplated hereby or thereby, and Parent, Holdco, Merger Sub and the Company (on behalf of itself and its Subsidiaries) hereby (a) waive any claim they have or may have that Stroock has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agree that, in the event that a dispute arises after the Closing between Surviving Pubco, the Surviving Company, any Subsidiaries of Surviving Pubco or the Surviving Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPACon the one hand) and any Seller, the Acquisition Entities Representative or any of their respective Subsidiaries) Affiliates (collectivelyon the other hand), Stroock may represent such Seller, the “Company Counsel WP Group”)Representative or such Affiliate in such dispute even though the interests of such Seller, in each casethe Representative or such Affiliate may be directly adverse to Surviving Pubco, solely in connection with any Action or obligation arising out of or relating to this Agreementthe Surviving Company, any Ancillary Document Subsidiaries of Surviving Pubco or the Transactions contemplated hereby Surviving Company or thereby, notwithstanding its prior representation any of their respective Affiliates and even though Stroock may have represented the Company and its Subsidiaries or other Company Counsel Waiving Partiesin a matter related to such dispute. Parent, and each of SPAC, the Acquisition Entities Holdco and the Company (on behalf of itself and its Subsidiaries) also further agree that, as to all communications between or among Stroock and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) Company, any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation the Subsidiaries of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPACSellers, the Acquisition Entities and the Company, together with Representative and/or any of their respective Affiliates, Subsidiaries, successors or assigns, agree Affiliates that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, relate in any Action against way to (i) the business, operations, finances, assets, securities, liabilities or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiariesprospects of, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or matters relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, Company or any matter relating to of its Subsidiaries or (ii) any of the foregoingtransactions contemplated by the Transaction Documents, are privileged communications that do the attorney-client privilege and the expectation of client confidence belongs to the Representative and may be controlled by the Representative and shall not pass to SPACor be claimed by Parent, PubCo Holdco, the Company or any Subsidiary of Parent, Holdco or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Acquiror and the Acquisition Entities Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Acquiror, Merger Sub and/or Sponsor, on behalf of their respective Non-Party Affiliates the one hand, and each of their respective successors and assigns the Company, on the other hand, any legal counsel (all such parties, the “Company Counsel Waiving Parties”), that including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇Ellenoff ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Schole LLP) that represented Acquiror and/or Sponsor prior to the Closing (“BD&PPrior Acquiror Counsel”) may represent Sponsor in such dispute even though the equityholders interests of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating Sponsor may be directly adverse to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving PartiesAcquiror, and each of SPACeven though such counsel may have represented Acquiror in a matter substantially related to such dispute, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from may be handling ongoing matters for Acquiror and/or Sponsor. All communication between or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Groupamong Prior Acquiror Counsel, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&PAcquiror, Merger Sub or Sponsor, on the other hand, made shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, Acquiror or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with Acquiror or Sponsor (in connection with any capacity) under a common interest agreement shall remain the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to or information of the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPACThe Company further agrees, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates itself and, after the Closing, on behalf of Acquiror and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”)AEye Companies, that ▇▇▇▇▇▇▇▇all communications in any form or format whatsoever between or among any of Prior Acquiror Counsel, LiptonAcquiror, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇Merger Sub or the Sponsor, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directorsRepresentatives that relate in any way to the negotiation, membersdocumentation and consummation of the Transactions or, partnersbeginning on the date of this Agreement, officers, employees or Affiliates any dispute arising under this Agreement (collectively, the “SPAC Counsel WP GroupAcquiror 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 Acquiror or the AEye Companies after the Closing. All Acquiror Deal Communications that are attorney-client privileged (the “Privileged Acquiror 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 Acquiror or the AEye Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor 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.
(c) Notwithstanding the foregoing, in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document the event that a dispute arises between Acquiror or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP GroupAEye Companies, on the one hand, and each of Wachtell Lipton and Oslera third party other than Sponsor, on the other hand, made prior the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged Acquiror Deal Communications to such third party. In the event that Acquiror or the AEye Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Acquiror Deal Communications, Acquiror shall immediately (and, in any event, within two (2) Business Days) notify Sponsor in writing (including by making specific reference to this Section 10.18) so that Sponsor can seek a protective order and Acquiror and the AEye Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior Acquiror Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Acquiror Deal Communications by reason of any attorney-client relationship between Prior Acquiror Counsel, on the one hand, and Acquiror or any AEye 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 Acquiror and the AEye Companies after the Closing, (i) to the extent that Acquiror or, after the Closing, the AEye Companies receives or takes physical possession of any Acquiror 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 10.18, and (b) neither Acquiror nor the AEye 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 Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Acquiror or any AEye Company waive the attorney-client or other privilege, or by otherwise asserting that Acquiror or the AEye Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Acquiror Deal Communications from Prior Acquiror Counsel so long as such Acquiror 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 DLA Piper (“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 negotiationnegotiation of this Agreement, preparationthe Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, executionAcquiror hereby irrevocably waives and agrees not to assert, delivery and performance underagrees to cause the AEye Companies after the Closing to irrevocably waive and agree 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 AEye Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
(g) Acquiror further agrees, on behalf of itself and, after the Closing, on behalf of the AEye Companies, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the AEye Companies, or any dispute or Action arising out of or relating totheir 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 Ancillary Documents or dispute arising under this Agreement (collectively, the Transactions contemplated hereby or thereby“Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised Parties, or any matter relating to any shall be controlled by Surviving Corporation on behalf of the foregoing, are privileged communications that do AEye Companies and shall not pass to SPAC, PubCo or be claimed by Acquiror or the Company following AEye Companies after the Closing, and instead survive, remain with and . All Company Deal Communications that are controlled by the SPAC Counsel WP Group attorney-client privileged (the “SPAC Counsel Privileged Company Deal Communications”), without any waiver thereof. SPAC, ) shall remain privileged after the Acquisition Entities Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Surviving Corporation and the Company, together with shall be controlled by Surviving Corporation on behalf of the Company and shall not pass to or be claimed by Acquiror or the AEye Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by Acquiror or any of their respective Affiliatesits Affiliates (including, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, the AEye Companies and SPACits 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 Acquisition Entities event that a dispute arises between Acquiror or the AEye Companies, on the one hand, and a third party other than Sponsor, on the other hand, Acquiror or the AEye 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 Acquiror nor the AEye Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the event that Acquiror or the AEye 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, Acquiror shall immediately (and, in any event, within two (2) Business Days) notify Surviving Corporation in writing (including by making specific reference to this Section 10.18) so that Surviving Corporation can seek a protective order and Acquiror 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 agree 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 AEye 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) Acquiror agrees on behalf of itself and the AEye Companies after the Closing, (i) to the extent that Acquiror or, after the Closing, the AEye Companies 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 10.18, and (b) neither Acquiror nor the AEye Companies after the Closing shall 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 assert that any privilege has been waived as to access or use the SPAC Counsel Privileged Company Deal Communications, including by virtue way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the Transactionsattorney-client or other privilege, or by otherwise asserting that Acquiror or the AEye Companies after the Closing 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
Sources: Merger Agreement (CF Finance Acquisition Corp. III)
Conflicts and Privilege. (a) SPAC From and after the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such partiesClosing Date, the “Company Counsel Waiving Parties”), that files maintained by ▇▇▇▇▇▇▇▇ Ronon ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ , LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇Counsel”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders attorney-client privilege of the Company Scout Group with Counsel relating to the Transaction shall be deemed to be the right of the Seller, and not that of the Scout Group, and may be waived only by the Seller, and all other attorney-client privileges of the Scout Group shall be retained by the Scout Group. Following the Closing Date, all communications in any form or format whatsoever between or among Counsel, on the one hand, and the Scout Group and the Seller Transaction Related Parties (as defined below) through the Closing Date, or any of their respective directors, members, partnerstrustees, officers, employees employees, or Affiliates (other than SPACrepresentatives, on the Acquisition Entities or their respective Subsidiaries) other hand, that relate to the negotiation, documentation and consummation of the Transaction (collectively, the “Company Privileged Communications”) shall be deemed to be attorney-client privileged and that the Privileged Communications and the expectation of confidence relating thereto belong solely to the Seller, shall be controlled by the Seller and shall not pass to or be claimed by the Purchaser, the Scout Group, or any of their respective Affiliates.
(b) Each of the parties hereto acknowledges and agrees that, as of immediately prior to the Closing, the Scout Group is the client of Counsel. After the Closing, it is possible that Counsel WP Groupwill represent the Seller and/or their respective Related Persons (individually and collectively, the “Seller Transaction Related Parties”), in each case, solely ) in connection with any Action matters and/or Claims relating to, or obligation arising out of or relating to of, this Agreement, any Agreement and the Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation Agreements. Each of the Company parties hereto agrees that Counsel may represent the Seller Transaction Related Parties in the future in connection with matters and/or Claims relating to, or arising out of, this Agreement and its Subsidiaries or other Company Counsel Waiving Partiesthe Ancillary Agreements, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interestinterest arising therefrom.
(c) Notwithstanding the foregoing, breach of duty in the event that a dispute arises between the Scout Group or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP GroupAffiliates, on the one hand, and each a third party other than the Seller or any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&Pits Affiliates, on the other hand, made prior to the Closing in connection with Purchaser, the negotiation, preparation, execution, delivery and performance underScout Group, or any dispute or Action arising out their respective Affiliates may assert the attorney-client privilege to prevent the disclosure of or relating tothe Privileged Communications to such third party; provided, this Agreementhowever, any Ancillary Documents or that none of the Transactions contemplated hereby or therebyPurchaser, the Scout Group, or any matter relating to any their respective Affiliates may waive such privilege without the prior written consent of the foregoing, are privileged communications Seller. In the event that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPACPurchaser, the Acquisition Entities and the CompanyScout Group, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees Affiliates is legally required by governmental order or Affiliates (collectivelyotherwise to access or obtain a copy of all or a portion of the Privileged Communications, the “SPAC Counsel WP Group”), Purchaser shall promptly notify the Seller in each case, solely in connection with any Action or obligation arising out of or relating writing (including by making specific reference to this AgreementSection 10.11) so that the Seller can seek a protective order and the Purchaser agrees to use all commercially reasonable efforts to assist therewith, any Ancillary Document or it being acknowledged and agreed that nothing contained in this clause (c) shall be deemed to interfere with the Transactions contemplated hereby or therebyability of the Purchaser, notwithstanding its prior representation of SPAC and its Subsidiariesthe Scout Group, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors Affiliates to comply with any legal requirement or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionsapplicable law.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Buyer, Buyer Parent, the Companies and the Acquisition Entities Subsidiaries hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such partiesthat, in the event a dispute arises under or in connection with this Agreement after the Closing between Buyer, Buyer Parent, the “Company Counsel Waiving Parties”)Companies or the Subsidiaries, that on the one hand, and Seller, on the other hand, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent Seller in such dispute even though the equityholders interests of Seller may be directly adverse to the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document Companies or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving PartiesSubsidiaries, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to even though ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇▇ LLP may have represented the Companies or the Subsidiaries in a matter substantially related to the dispute, Liptonor may be handling ongoing matters for the Companies and the Subsidiaries. Buyer, ▇▇▇▇▇ & ▇▇▇▇ (“▇Buyer Parent, the Companies, the Subsidiaries and Seller further agree that, as to all communications between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectivelyLLP, the “SPAC Counsel WP Group”)Companies, in each casethe Subsidiaries and Seller that relate, solely in connection with any Action both prior to or obligation arising out of or relating after the Closing, to (a) the transactions contemplated by this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with including without limitation the negotiation, preparation, execution, delivery and performance closing under, or any dispute arising under or Action arising out in connection with this Agreement which, immediately prior to the Closing, would be covered by the attorney-client privilege of Seller and its counsel, and (b) the DFS Subpoena, the attorney-client privilege and the expectation of client confidence belongs to Seller and may be controlled by Seller, and shall not pass to or relating tobe claimed or controlled by the Companies or the Subsidiaries; provided, that Seller shall not waive such attorney-client privilege other than to the extent appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of . Notwithstanding the foregoing, are privileged communications that do not pass to SPACin the event a dispute arises between Buyer, PubCo Buyer Parent, the Companies or the Company following the Closing, Subsidiaries and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties a person other than Seller after the Closing, and SPACthe Companies or the Subsidiaries may assert the attorney-client privilege to prevent disclosure of confidential communications by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP to such person. Other than as explicitly set forth in this Section 12.12, the Acquisition Entities parties hereto acknowledge that any attorney-client privilege attaching as a result of legal counsel representing the Companies and the Company agree not to assert that any privilege has been waived as Subsidiaries prior to the SPAC Counsel Privileged Communications, by virtue Closing shall survive the Closing and continue to be a privilege of the TransactionsCompanies and the Subsidiaries, and not Seller, after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Acquisition Entities Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on behalf of their respective Non-Party Affiliates the one hand, and each of their respective successors and assigns the Company, PubCo, Merger Sub 1, Merger Sub 2, on the other hand, any legal counsel (all such parties, the “Company Counsel Waiving Parties”), that including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇Ellenoff ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Schole LLP) that represented SPAC and/or Sponsor prior to the Closing (“BD&PPrior SPAC Counsel”) may represent Sponsor in such dispute even though the equityholders interests of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than Sponsor may be directly adverse to SPAC, the Acquisition Entities and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action may be handling ongoing matters for SPAC and/or Sponsor. All communication between or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Groupamong Prior SPAC Counsel, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&PSPAC or Sponsor, on the other hand, made shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in connection with any capacity) under a common interest agreement shall remain the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to or information of the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, the Acquisition Entities PubCo and the Nettar 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 “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 Nettar 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 Nettar Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor 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.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Nettar Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC nor the Nettar Companies may waive such privilege with respect to Privileged Company hereby Deal Communications without the prior written consent of Surviving Corporation. In the event that SPAC, PubCo or the Nettar 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 Nettar 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 Nettar 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 their respective Nonitself and SPAC, PubCo and the Nettar Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Nettar 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 Nettar Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-Party Affiliates 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 Nettar Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Nettar Companies after the Closing has the right to waive the attorney-client or other privilege and each of their respective successors and assigns (all such parties, iii) not to seek to obtain the “SPAC Deal Communications from Prior SPAC Counsel Waiving Parties”), 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 ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ & Harcourt ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP (“OslerPrior Company Counsel”) may represent has acted as counsel to the shareholders 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 holders dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of other equity interests interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Sponsor or Company and (ii) Prior Company Counsel’s representation of SPAC or any member of their respective directors, members, partners, officers, employees or Affiliates the Nettar Companies (collectively, the “SPAC Counsel WP GroupCompany Advised Parties”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree Buyer, on behalf of their respective Non-Party itself and its Affiliates and each (which for this purpose, shall be deemed to include the Company) agrees that, notwithstanding any current or prior representation of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that by ▇▇▇▇ ▇▇▇▇▇▇ , Esq., Sidley Austin LLP and ▇▇▇▇▇, Olson, Michod, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP ▇, LLC (the “▇▇▇▇▇▇ ▇▇▇▇▇▇▇Counsel”) ), the Counsel shall be allowed to represent Sellers and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating matters and disputes adverse to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities Buyer and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, either are existing on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, date hereof or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located arise in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Partiesfuture. Each of SPAC, the Acquisition Entities and the CompanyBuyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the SPAC Company) hereby waives any claim that Buyer or the Company has or may have that any of the Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any has a conflict of interestinterest or is otherwise prohibited from engaging in such representation and agrees that, breach of duty if a dispute arises after the Closing between Buyer or the Company and any Seller or any other objection arising from of their Affiliates, then any or relating all of the Counsel may represent Sellers or such Affiliate in such dispute even though the interests of Sellers or such Affiliate may be directly adverse to Wachtell Lipton’s Buyer or ▇▇▇▇▇’▇ prior representation the Company and even though the Counsel may have represented the Company in a matter substantially related to such dispute. Buyer, on behalf of SPAC itself and its SubsidiariesAffiliates (which, for this purpose, shall be deemed to include the Company), also agrees that, as to all communications between or other SPAC among the Counsel Waiving Parties. Each of SPACand Sellers, the Acquisition Entities and the Company, for itself and/or any of their respective Affiliates that occurred prior to the Closing and related to the negotiation of this Agreement and the SPAC agreements, certificates and other documents contemplated hereby, the attorney-client privilege and the expectation of client confidence belong to Sellers and may be controlled by Sellers and shall not pass to or be claimed by Buyer or the Company. Sellers hereby acknowledge and agree that, for all other communications between or among the Counsel Waiving Partiesand Sellers, hereby further irrevocably acknowledges the Company, and/or any of their respective Affiliates that occurred prior to the Closing and agrees that all privileged communicationsfor which the Company had the right, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with to assert and waive the negotiationattorney-client privilege, preparation, execution, delivery the Company’s right to assert and performance under, or any dispute or Action arising out waive the attorney-client privilege and expectation of or relating to, this Agreement, any Ancillary Documents or client confidence shall pass to and be claimed by Buyer and the Transactions contemplated hereby or thereby, or any matter relating to any of Company. Notwithstanding the foregoing, are privileged communications that do not pass to SPAC, PubCo if an inquiry or dispute arises after the Closing between the Company following and a third party (other than Sellers or an Affiliate of Sellers), then the Closing, and instead survive, remain with and are controlled Company (to the extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by the SPAC Counsel WP Group (Counsel; provided that if the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPACCompany elects to waive such privilege, the Acquisition Entities and the Company, together Company shall provide Sellers with any reasonable advance notice of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionssuch waiver.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. (a) SPAC Buyer, Parent, Company and the Acquisition Entities hereby NewCo agree on behalf that notwithstanding any current or prior representation of their respective Non-Party Parent and/or its Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇by ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇MB”), MB will be allowed to represent Parent or any of its Affiliates (which will no longer include NewCo after the Closing) in any matters and disputes, including in any matter or dispute adverse to Buyer and its Affiliates (including, after the Closing, NewCo) that either is existing on the date hereof or that arises in the future and in each case relates to this Agreement, and Buyer does hereby, and agrees with respect thereto to cause its Affiliates (including, after the Closing, NewCo) to, (a) waive any claim they have or may have that MB has a conflict of interest or is otherwise prohibited from engaging in such representation, and (b) agree that, in the event that a dispute arises after the Closing between Buyer or any of its Affiliates (on the one hand) and BurnetParent or any of its Affiliates (on the other hand), ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) MB may represent Parent or such Affiliate in such dispute even though the equityholders interests of Parent or such Affiliate may be directly adverse to Buyer or its Affiliates (including NewCo) and even though MB may be handling ongoing matters for Buyer or NewCo. Buyer further agrees, and agrees to cause its Affiliates (including, after the Company Closing, NewCo; provided, however, that MB shall be permitted to represent NewCo pursuant to the terms of Section 9.6 of this Agreement) to agree, that, as to all privileged communications between or among MB and Parent and any of its Affiliates (including, prior to the Closing, NewCo) that relate in any way to this Agreement, the transactions contemplated herby, the Isle Excluded Assets or the Isle Excluded Obligations or NewCo, its Affiliates or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPACoperations for the period ending at the Closing, the Acquisition Entities or their respective Subsidiaries) (collectively, attorney-client privilege and the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out expectation of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Partiesclient confidence belongs to, and each of SPACmay be controlled by, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (Parent and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closingor be claimed by Buyer or its Affiliates (including, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, NewCo). Accordingly, none of Buyer or its Affiliates (including NewCo) will have access to such communications from and SPACafter the Closing. Notwithstanding the foregoing in this Section 11.17, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
if a dispute arises between Buyer or its Affiliates (b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”including NewCo) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of a third party other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating than a party to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC Agreement or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties Affiliates after the Closing, NewCo may assert the attorney-client privilege to prevent disclosure of confidential communications by MB to such unaffiliated third party; provided, however, that NewCo may not waive such privilege without the prior written consent of Parent. This Section 11.17 will be irrevocable, and SPACno term of this Section 11.17 may be amended, waived, or modified, without the Acquisition Entities prior written consent of Parent and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsBuyer.
Appears in 1 contract
Sources: Securities Purchase Agreement (Isle of Capri Casinos Inc)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree Acquiror, on behalf of their respective Non-Party itself and its Affiliates and each of their respective successors and assigns (all such partieswhich, for this purpose, shall be deemed to include, following the Closing, the “Company Counsel Waiving Parties”)Group and its Subsidiaries) agrees that, that notwithstanding any current or prior representation of the Company Group and its Subsidiaries by ▇▇▇▇▇ & Lardner LLP and ▇▇▇▇▇▇ ▇▇PLC, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇”PLC shall be allowed to represent Seller and each of its Affiliates in any matters and disputes adverse to Acquiror, the Company Group, any Subsidiary of the Company Group or their respective Affiliates that either are existing on the date hereof or arise in the future and relate to this Agreement or the other Transaction Documents or the transactions contemplated hereby and thereby. Acquiror, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include, following the Closing, the Company Group and the Subsidiaries) hereby (i) waives any claim that Acquiror, the Company Group, any Subsidiary of the Company Group and Burnet, ▇▇▇▇their respective Affiliates have or may have that ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ PLC has a conflict of interest or BD&P’s prior is otherwise prohibited from engaging in such representation of and (ii) agrees that, if a dispute arises after the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPACClosing between Acquiror, the Acquisition Entities and the CompanyCompany Group, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member Subsidiary of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, Group or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates and Seller or any of its Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, then ▇▇▇▇▇ & ▇▇▇▇▇▇▇ (“LLP and ▇▇▇▇▇▇ PLC may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Acquiror, the Company Group, any Subsidiary of the Company Group or their respective Affiliates and even though ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ PLC may have represented the Company Group or any its Subsidiaries in a matter substantially related to such dispute or may be handling ongoing matters for Acquiror, the Company Group, any Subsidiary of the Company Group or their respective Affiliates. Acquiror, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company Group and its Subsidiaries), agrees that, as to all communications between or among ▇▇▇▇▇ & ▇▇▇▇▇▇”) ▇ LLP and ▇▇▇▇▇▇ PLC and Seller, the Company Group, any Subsidiary of the Company Group or any of their respective Affiliates that relate in any way to the transactions contemplated by this Agreement, the attorney-client privilege and the expectation of client confidence belongs to Seller, shall be controlled by Seller and shall not pass to or be claimed by Acquiror, the Company Group or any of its Subsidiaries. Notwithstanding the foregoing, if a dispute arises between Acquiror, the Company Group or any of its Subsidiaries and a Third Party (other than Seller or any of its Affiliates) after the Closing, then the Company Group or its Subsidiary, to the extent applicable, may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by ▇▇▇▇▇ & ▇▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its SubsidiariesPLC; provided, or other SPAC Counsel Waiving Parties. Each of SPAC, that neither the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to Company Group nor any of its Subsidiaries may waive such privilege without the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any prior written consent of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSeller.
Appears in 1 contract
Sources: Transaction Agreement (Wellcare Health Plans, Inc.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and It is acknowledged by each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), parties hereto that ▇▇▇▇▇▇ the Securityholders’ Representative has retained ▇▇▇▇▇▇▇ & to act as its counsel in connection with the Contemplated Transactions. Buyer and Merger Sub hereby agree that in the event that a dispute arises after the Closing between Buyer or any of its Subsidiaries (including the Surviving Company and its Subsidiaries), on the one hand, and the Securityholders’ Representative or any of the Securityholders, on the other hand, ▇▇▇▇▇▇▇ LLP may represent the Securityholders’ Representative or Securityholders in such dispute even though the interests of the Securityholders’ Representative or Securityholders may be directly adverse to Buyer or any of its Subsidiaries (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) including the Surviving Company and Burnetits Subsidiaries), ▇▇and even though ▇▇▇▇▇▇▇ & may have represented an Acquired Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company or its Subsidiaries.
(b) Buyer and ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directorsSub further agree that, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇communications between or among ▇▇▇▇▇▇▇, Liptonthe Company, ▇▇▇▇▇ & ▇▇▇▇ the Securityholders’ Representative or any Securityholder that relate in any way to the Contemplated Transactions or a similar transaction prior to the Closing, and with respect to which the attorney-client privilege and any other rights to any evidentiary privilege have attached as a result of the Contemplated Transactions or a similar transaction (the “▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇Privileged Transaction Communications”) ), the attorney-client privilege and the expectation of client confidence belongs to the Securityholders’ Representative and the Securityholders and may be controlled by the Securityholders’ Representative and Securityholders and shall not pass to or be claimed by ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent Merger Sub, the shareholders or holders of other equity interests of the Sponsor or of SPAC Surviving Company or any of their respective directorsits Subsidiaries. Absent the consent of the Securityholders’ Representative, membersneither Buyer nor the Surviving Company shall have a right to access the Privileged Transaction Communications following the Closing and, partnersin the event Buyer or the Surviving Company inadvertently access Privileged Transaction Communications, officerssuch access will not waive or otherwise affect the rights of the Securityholders’ Representative with respect to the related privilege or protection. Notwithstanding the foregoing, employees in the event Buyer or Affiliates the Surviving Company requires access to the Privileged Transaction Communications following the Closing, Buyer or the Surviving Company may make a written request for such access to the Securityholders’ Representative, and the Securityholders’ Representative will not unreasonably withhold, condition, or delay its consent to such access. The Securityholders’ Representative hereby agrees that it is reasonable for Buyer or the Surviving Company to require access to the Privileged Transaction Materials if such access is necessary to permit Buyer or the Surviving Company to adequately defend itself from and against any third-party legal proceeding against Buyer or the Surviving Company, but in the event such access is provided (collectivelyi) Buyer and the Surviving Company, and the Securityholders’ Representative, hereby agree that any such Privileged Transaction Materials that are shared pursuant to this Section 13.12 shall be protected by the attorney-client privilege, the “SPAC Counsel WP Group”)attorney work-product privilege and a joint defense privilege, (ii) Buyer and the Surviving Company will use their reasonable best efforts to protect any such Privileged Transaction Communications that are shared pursuant to this Section 13.12 from disclosure to third parties, and (iii) in no circumstances may such Privileged Transaction Materials that are shared pursuant to this Section 13.12 be used in any legal proceeding of any nature by Buyer or the Surviving Company against the Securityholders’ Representative or any Securityholder.
(c) Notwithstanding the foregoing, in each casethe event that a dispute arises between Buyer, solely in connection with the Surviving Company or any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Oslera third party other than the Securityholders’ Representative or a Securityholder, on the other hand, made prior to Buyer, the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, Surviving Company or any dispute of its Subsidiaries may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, however, that neither Buyer, the Surviving Company or Action arising out of or relating to, this Agreement, any Ancillary Documents or its Subsidiaries may waive such privilege without the Transactions contemplated hereby or thereby, or any matter relating to any prior written consent of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSecurityholders’ Representative.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Company, Company Sub, Gulliver Media and SNI acknowledge and agree that, in the Acquisition Entities hereby agree on behalf event a dispute arises after the Closing between any or all of their respective Non-Party Affiliates and each of their respective successors and assigns (all such partiesSNI, Gulliver Media, Company, Company Sub, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company Travel Channel Entities or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP GroupAffiliates, on the one hand, and each of Cox TMI and its Affiliates, on the other hand, Dow ▇▇▇▇▇▇ ▇PLLC may represent any or all of Cox TMI and any of its Affiliates in such dispute even though the interests of Cox TMI and its Affiliates may be directly adverse to SNI, Gulliver Media, Company, Company Sub, any of the Travel Channel Entities or their respective Affiliates, and even though Dow ▇▇▇▇▇▇ and BD&PPLLC may have represented any of SNI, on the other handGulliver Media, made prior Company, Company Sub, any Travel Channel Entity or any of their respective Affiliates in a matter substantially related to the Closing in connection with the negotiation, preparation, execution, delivery and performance undersuch dispute, or any dispute or Action arising out of or relating tomay be handling ongoing matters for SNI, this AgreementGulliver Media, Company, Company Sub, any Ancillary Documents Travel Channel Entity or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates. Company, SubsidiariesCompany Sub, successors or assignsGulliver Media SNI and Cox TMI agree that, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇communications between Dow ▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP GroupPLLC, on the one hand, and each Cox TMI, Company, Company Sub, any Travel Channel Entity or any of Wachtell Lipton and Oslertheir respective Affiliates, on the other hand, made prior that relate to the ClosingTransactions, in connection with the negotiationattorney-client privilege and the expectation of client confidence belongs to Cox TMI and its Affiliates (other than Company, preparation, execution, delivery and performance underCompany Sub, or any dispute Travel Channel Entity), and shall not pass to or Action arising out of be claimed or relating tocontrolled by SNI, this AgreementGulliver Media, Company, Company Sub, any Ancillary Documents or the Transactions contemplated hereby or thereby, Travel Channel Entity or any matter relating to of their respective Affiliates in the event of a legal dispute with any of Cox TMI or its Affiliates. Notwithstanding the foregoing, are privileged communications that do not pass to SPACin the event a dispute arises between SNI, PubCo or the Company following the ClosingGulliver Media, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with Company Sub, any Travel Channel Entity or any of their respective Affiliates, Subsidiarieson the one hand, successors and a Person other than Cox TMI or assigns, agree that no Person may use or rely on any of its Affiliates, on the SPAC Counsel Privileged Communicationsother hand, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPACthen SNI, Gulliver Media, Company, Company Sub, the Acquisition Entities and applicable Travel Channel Entity or any of their respective Affiliates may assert the attorney-client privilege to prevent disclosure of confidential communications by Dow ▇▇▇▇▇▇ PLLC to such Person; provided, however, that none of SNI, Gulliver Media, Company, Company agree not to assert that Sub, any Travel Channel Entity or any of their respective Affiliates may waive such privilege has been waived as to without the SPAC Counsel Privileged Communications, by virtue prior written consent of Cox TMI or the Transactionsapplicable Affiliate of Cox TMI.
Appears in 1 contract
Sources: Contribution Agreement (Scripps Networks Interactive, Inc.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), Recognizing that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇Seller Counsel”) has been engaged by the Seller and Burnetits Affiliates to represent the Seller in connection with the transactions contemplated hereunder, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP each Purchaser hereby (“BD&P”a) waives, on its own behalf and agrees to cause its Affiliates to waive, any conflicts that may arise after the Closing between the Purchaser or any of its Affiliates, on the one hand, and the Seller or any of its Affiliates, on the other hand, and (b) agrees that Seller Counsel may represent the equityholders Seller or any of its Affiliates in such dispute even though the interest of the Company Seller may be directly adverse to the Purchaser or any of its Affiliates, and even though Seller Counsel may have represented the Purchaser or any of its Affiliates in a matter substantially related to such dispute, or may be handling ongoing matters for the Purchaser or any of its Affiliates. In addition, each Purchaser, on its own behalf and on behalf of its Affiliates, further agrees that, notwithstanding anything in this Agreement to the contrary, as to all communications among any of Seller Counsel or the Seller or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directorsmanagers, members, partners, officers, officers or employees or Affiliates (collectivelythat relate in any way to this Agreement or the transactions contemplated hereunder, the “SPAC attorney-client privilege and the expectation of client confidence belongs to the Seller and shall be controlled solely by the Seller and shall not pass to or be claimed by either Purchaser or any of its Affiliates. Accordingly, the Purchasers shall not have access to any such communications, or to the files of Seller Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreementits engagement, any Ancillary Document whether or not the Transactions contemplated hereby or therebyClosing shall have occurred. Notwithstanding those efforts, notwithstanding each Purchaser, on its prior representation of SPAC behalf and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Partiesits Affiliates, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges understands and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member the consummation of the SPAC Counsel WP Grouptransactions contemplated hereunder may result in the inadvertent disclosure of such information that may be confidential or subject to a claim of privilege. Each Purchaser, on its behalf and on behalf of its Affiliates, further understands and agrees that any disclosure of such information that may be confidential or subject to a claim of privilege will not prejudice or otherwise constitute a waiver of any claim of privilege. Each Purchaser, on its behalf and on behalf of its Affiliates, agrees to use commercially reasonable efforts to return promptly any such inadvertently disclosed information to the one handappropriate Person upon becoming aware of its existence. Each Purchaser agrees to take, and each to cause its Affiliates to take, all steps necessary to implement the intent of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSection.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Acquiror, the Company and the Acquisition Entities Holder Representative hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such partiesthat, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among Acquiror, the “Company Counsel Waiving Parties”)GPIAC Designated Directors and/or the Sponsor, that ▇▇▇▇▇▇ ▇on the one hand, and the Company, the Pre-Closing Holders, the Holder Representative and/or the Escrow Stockholders, on the other hand, any legal counsel (including Skadden, Arps, Slate, M▇▇▇▇▇▇ & ▇▇▇▇F▇▇▇ LLP LLP) that represented Acquiror, the GPIAC Designated Directors and/or the Sponsor prior to the Closing may represent the GPIAC Designated Directors and/or Sponsor in such dispute even though the interests of the GPIAC Designated Directors and/or Sponsor may be directly adverse to the Acquiror, and even though such counsel may have represented Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for Acquiror, the GPIAC Designated Directors and/or the Sponsor. Acquiror, the Company and the Holder Representative further agree that, as to all legally privileged communications prior to the Closing between or among any legal counsel (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnetincluding Skadden, ▇▇▇Arps, Slate, M▇▇▇▇▇▇ & ▇▇▇F▇▇▇ LLP (“BD&P”LLP) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPACthat represented Acquiror, the Acquisition Entities or their respective Subsidiaries) (collectively, GPIAC Designated Directors and/or the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made Sponsor prior to the Closing and any one or more such Persons that relate in any way to the transactions contemplated by this Agreement, the attorney/client privilege and the expectation of client confidence belongs to the GPIAC Designated Directors and may be controlled by such GPIAC Designated Directors, and shall not pass to or be claimed or controlled by Acquiror (after giving effect to the Closing), the Company and the Holder Representative; provided that the GPIAC Designated Directors shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the negotiation, preparation, execution, delivery and performance under, enforcement or any dispute defense of their respective rights or Action arising out of or relating to, obligations existing under this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of . Notwithstanding the foregoing, are any privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled or information shared by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the ClosingClosing with Acquiror, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents Sponsor or the Transactions contemplated hereby GPIAC Appointed Directors (in any capacity) under a common interest agreement shall remain the privileged communications or thereby, or any matter relating to any information of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSurviving Corporation.
Appears in 1 contract
Sources: Merger Agreement (GP Investments Acquisition Corp.)
Conflicts and Privilege. (a) SPAC Each of the parties hereto acknowledges and agrees that Citron & Deutsch, A Law Corporation (“Citron”) has acted as counsel to the Acquisition Entities Company in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby.
(b) Acquiror hereby agree on behalf of their respective Non-Party Affiliates consents and each of their respective successors agrees that, and assigns (all such partiesagrees to cause, the “Company Counsel Waiving Parties”)Surviving Corporation to consent and agree that, that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) Citron may represent the equityholders Securityholders’ Representative and any of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) Securityholders (collectively, the “Company Counsel WP GroupSeller Parties”), in each case, solely ) after the Closing in connection with issues that may arise under this Agreement or the Escrow Agreement, the administration of the Clawback Shares and any Action claims that may be made thereunder pursuant to this Agreement or obligation the Escrow Agreement, including, for clarity, with respect to such claims in which the interests of the Seller Parties may be directly adverse to Acquiror and its Subsidiaries (including the Surviving Corporation). In connection with the foregoing, Acquiror hereby irrevocably waives and agrees not to assert, and agrees to cause the Surviving Corporation to irrevocably waive and not to assert, any conflict of interest arising out from Citron’s representation of or relating the Seller Parties after the Closing. 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, any Ancillary Document or the Transactions Escrow Agreement and the transactions contemplated hereby and thereby. Nothing in this Section 10.11 shall constitute a waiver of any attorney client privilege or thereby, notwithstanding its prior any privilege associated with the Company on any matter (other than Citron’s representation of the Company and its Subsidiaries or in connection with this Agreement, the other Company Counsel Waiving PartiesAncillary Agreements, and each the transactions contemplated hereby and thereby, in a manner that would not materially prejudice the Company’s rights and obligations vis-à-vis third parties), and does not waive or excuse Citron from complying with applicable rules of SPAC, professional conduct regarding the Acquisition Entities and confidentiality of any client information of the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating than as it pertains to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&PCitron’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPACin connection with this Agreement, the Acquisition Entities other Ancillary Agreements and the Company, for itself transactions contemplated hereby and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, thereby.
(c) All pre-Closing communications involving attorney client confidences between the Company and its Subsidiaries or any member of the Company Counsel WP GroupSecurityholders, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&PCitron, on the other hand, made prior in the course of and relating to the Closing in connection with negotiation and documentation of this Agreement and the negotiation, preparation, execution, delivery Ancillary Agreements shall be deemed to be attorney client confidences that belong solely to the Company Securityholders (and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or not the Transactions contemplated hereby or thereby, or any matter relating to any Company) and may be controlled by the Company Securityholders. Without limiting the generality of the foregoing, are privileged communications that do not pass to the Company following the Closing, upon and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, the Company Securityholders and SPACtheir Affiliates (and not the Surviving Corporation) shall be the sole holders of the attorney client privilege with respect to such pre-Closing communications relating to the negotiation and documentation of this Agreement and the Ancillary Agreements, the Acquisition Entities and the Company agree shall not to assert that any privilege has been waived as to be a holder thereof; provided, in the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC event a dispute arises after Closing between Acquiror or any of their respective directors, members, partners, officers, employees or its Affiliates (collectively, including the “SPAC Counsel WP Group”Surviving Corporation), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Oslerany other Person other than the Company Securityholders or their respective Affiliates, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out each of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities Acquiror and the Company, together Surviving Corporation may assert the attorney-client privilege with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not respect to assert that any privilege has been waived as such pre-Closing communications to the SPAC Counsel Privileged Communications, by virtue of the Transactionsprevent disclosure thereof to such Person.
Appears in 1 contract
Sources: Merger Agreement (Cure Pharmaceutical Holding Corp.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and It is acknowledged by each of their respective successors and assigns (all such parties, the “Parties that the Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ has retained White & ▇▇▇▇▇▇▇ Case LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇W&C”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely to act as its counsel in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions transactions contemplated hereby or thereby, notwithstanding its prior representation 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 Company and its Subsidiaries or other Company Counsel Waiving Parties, and each Parties has the status of SPAC, the Acquisition Entities and the Company on behalf a client of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any W&C for conflict of interest, breach of duty interest or any other objection arising from purposes as a result thereof. Parent and Merger Sub hereby agree that, in the event that a dispute arises after the Closing between Parent or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP GroupSurviving Corporation, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any former Equity Holder of the Company Counsel Privileged Communicationsor the Stockholders’ Representative, whether located in W&C may represent any such former Equity Holder or the records or email server of the Company and its SubsidiariesStockholders’ Representative, as applicable, in any Action against such dispute even though the interests of such former Equity Holder or involving any of the parties after the ClosingStockholders’ Representative, and SPACas applicable, may be directly adverse to Parent, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC Surviving Corporation or its Subsidiaries, and even though W&C may have represented the Company or any other member the Company Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for Parent, the Surviving Corporation or its Subsidiaries. Parent and Merger Sub further agree that, as to all communications among W&C, the Company, the Company Subsidiaries, the Stockholders’ Representative and the Equity Holders that primarily relate to the transactions contemplated by this Agreement, the attorney-client privilege and the expectation of client confidence belongs to the Company and, from and after the Effective Time, the former Equity Holders of the SPAC Counsel WP GroupCompany, and may be controlled only by them and shall not pass to or be claimed by Parent, the Surviving Corporation or its Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between Parent, the Surviving Corporation or its Subsidiaries, on the one hand, and each of Wachtell Lipton and Oslera third party other than a Party to this Agreement after the Closing, on the other hand, made the Surviving Corporation and its Subsidiaries may assert the attorney-client privilege to prevent disclosure of confidential communications by W&C to such third party; provided, however, that neither the Surviving Corporation nor its Subsidiaries may waive such privilege without the prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any written consent of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsStockholders’ Representative.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Each of the Parties hereto acknowledges and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), agrees that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) has acted as counsel to the Company Entities, their Subsidiaries and Burnetthe Seller in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby. The Purchaser hereby consents and agrees to, and irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with, and agrees to cause the Company Entities and their Subsidiaries to consent and agree to and irrevocably waive and not assert any conflict of interest arising from or in connection with, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent representing the equityholders Seller after the Closing, including with respect to disputes in which the interests of the Company or any of their respective directors, members, partners, officers, employees or Seller may be directly adverse to the Purchaser and its Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of including the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company their Subsidiaries). The Purchaser further agrees, on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interestand, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of the Company Entities and their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”)Subsidiaries, that ▇all communications in any form or format whatsoever between or among any of ▇▇▇▇▇▇▇, Liptonthe Seller, the Company Entities and/or any of their Subsidiaries, or any of their respective directors, officers, employees or other representatives that relate in any way to the negotiation, documentation and consummation of the Transaction (collectively, the “Deal Communications”) shall be deemed to be retained and owned by Seller, shall be controlled by Seller, and shall not pass to or be claimed by the Purchaser, the Company Entities or any of their Subsidiaries. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Seller, shall be controlled by Seller and shall not pass to or be claimed by Purchaser, the Company Entities or any of their Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Purchaser, any Company Entity or a Subsidiary, on the one hand, and a third party other than the Seller, on the other hand, the Purchaser, the Company Entities or the Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such third party; provided, however, that none of the Purchaser, the Company Entities or any Subsidiary may waive such privilege without the prior written consent of Seller. In the event that the Purchaser, any Company Entity or any of their Subsidiaries is legally required by Order or otherwise to access or obtain a copy of all or a portion of the Deal Communications, the Purchaser shall promptly (and, in any event, within five (5) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective order and the Purchaser agrees to use all commercially reasonable efforts (at the sole expense of Seller) to assist therewith. To the extent that files or other materials maintained by ▇▇▇▇▇▇▇ & constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇▇▇▇ (“shall have no duty to reveal or disclose any such files or other materials or any Privileged Deal Communications by reason of any attorney-client relationship between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Oslerany Company Entity or its Subsidiaries, on the other hand. The Purchaser agrees that it will not, made prior to and that it will cause the ClosingCompany Entities and their Subsidiaries not to, in connection with (i) intentionally access or use the negotiationPrivileged Deal Communications, preparationincluding by way of review of any electronic data, execution, delivery and performance undercommunications or other information, or any dispute by seeking to have Seller waive the attorney-client or Action arising out of other privilege, or relating to, this Agreementby otherwise asserting that the Purchaser, any Ancillary Documents Company Entity or the Transactions contemplated hereby or thereby, or any matter relating to any of the Company Entities’ Subsidiaries has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Privileged Deal Communications from ▇▇▇▇▇▇▇. Notwithstanding the foregoing, are Purchaser shall not be in breach of this Agreement solely as a result of inadvertent access to any Privileged Deal Communications. Seller acknowledges and agree that, except as otherwise set forth above relating to the Privileged Deal Communications, all other confidential and privileged communications that do not pass information relating to SPAC, PubCo or the Company Entities and its Subsidiaries belong to the Company Entities and the Subsidiaries and, following the Closing, and instead survive, remain Purchaser shall have full rights with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionsrespect thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (CEB Inc.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and It is acknowledged by each of their respective successors the parties hereto that each of the Securityholders’ Representative and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ SupplyPike has retained ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) to act as its counsel in connection with the Contemplated Transactions. Parent and BurnetMerger Sub hereby agree that in the event that a dispute arises after the Closing between Parent or any of its Subsidiaries, on the one hand, and the Securityholders’ Representative or any of the Securityholders or SupplyPike, on the other hand, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders Securityholders’ Representative, Securityholders and/or SupplyPike in such dispute even though the interests of the Company Securityholders’ Representative, Securityholders and/or SupplyPike may be directly adverse to Parent or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective its Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ even though ▇▇▇▇▇▇▇ and BD&P, on may have represented the other hand, made prior Company in a matter substantially related to the Closing in connection with the negotiation, preparation, execution, delivery and performance undersuch dispute, or any dispute may be handling ongoing matters for the Surviving Corporation or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries. Parent and Merger Sub further agree that, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇communications between or among ▇▇▇▇▇▇▇, Liptonon the one hand, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, the Securityholders’ Representative, any Securityholder and/or SupplyPike, on behalf of itself the other hand, that relate in any way to the Contemplated Transactions or a similar transaction prior to the Closing, the attorney-client privilege and the SPAC Counsel Waiving Partiesexpectation of client confidence belongs to the Securityholders’ Representative and the Securityholders, hereby consents thereto or with respect to matters under the SupplyPike Agreements, SupplyPike, and irrevocably waives (may be controlled by the Securityholders’ Representative and will Securityholders, or with respect to matters under the SupplyPike Agreements, SupplyPike, and shall not assert) any conflict of interestpass to or be claimed by Parent, breach of duty Merger Sub, the Surviving Corporation or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries. Notwithstanding the foregoing, or other SPAC Counsel Waiving Parties. Each of SPACin the event that a dispute arises between Parent, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written Surviving Corporation or oral, between SPAC or any of its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Oslera third party other than the Securityholders’ Representative, a Securityholder or SupplyPike, on the other hand, made Parent, the Surviving Corporation or any of its Subsidiaries may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, however, that neither Parent, the Surviving Corporation or its Subsidiaries may waive such privilege without the prior to written consent of the Closing, in connection with the negotiation, preparation, execution, delivery and performance underSecurityholders’ Representative, or any dispute or Action arising out of or relating towith respect to matters under the SupplyPike Agreements, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the TransactionsSupplyPike.
Appears in 1 contract
Sources: Merger Agreement (Hub Group, Inc.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), Recognizing that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) has acted as legal counsel to Seller and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or its Affiliates (other than SPAC, including the Acquisition Entities or their respective SubsidiariesAcquired Companies) (collectively, prior to the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving PartiesClosing, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇that ▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation intends to act as legal counsel to Seller and its Affiliates (which will no longer include the Acquired Companies) after the Closing, each of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities Buyer and the Company, for itself and the Company Counsel Waiving Parties, Acquired Companies hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Groupwaives, on the one handits own behalf, and each of ▇▇any conflicts that may arise in connection with ▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to representing Seller and/or its Affiliates after the Closing in connection with as such representation may relate to any Acquired Company or the negotiationTransactions. In addition, preparationall communications involving attorney-client confidences between Seller, execution, delivery and performance under, its Affiliates or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Acquired Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the course of the negotiation, documentation and consummation of the Transactions (the “Privileged Communications”) shall be deemed to be attorney-client confidences that belong solely to Seller and its Affiliates (and not the Acquired Companies). Accordingly, the Acquired Companies shall not, without Seller’s consent, have access to any Privileged Communications, or to the files of ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ & Harcourt LLP relating to its engagement, whether or not the Closing shall have occurred. Without limiting the generality of the foregoing, upon and after the Closing, (“Osler”i) may represent Seller and its Affiliates shall be the shareholders or sole holders of other equity interests the attorney-client privilege with respect to the Privileged Communications and the related engagement, and none of the Sponsor or Acquired Companies shall be a holder thereof, (ii) to the extent that files of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇ ▇▇▇▇▇’▇ prior representation in respect of SPAC such engagement constitute property of the client, only Seller and its Subsidiaries, Affiliates (and not the Acquired Companies) shall hold such property rights and (iii) ▇▇▇▇ ▇▇▇▇▇ shall have no duty whatsoever to reveal or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written disclose any such Privileged Communications or oral, between SPAC or its Subsidiaries, or files to any other member of the SPAC Counsel WP GroupAcquired Companies by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇ and any of the Acquired Companies or otherwise. Notwithstanding the foregoing, in the event that a dispute arises between Buyer and any of the Acquired Companies, on the one hand, and each of Wachtell Lipton and Oslera Person other than a party to this Agreement, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, the Acquired Companies may access or obtain all or a portion of the Privileged Communications for the sole purpose of defending against such dispute, and SPACmay assert the attorney-client privilege to prevent disclosure to such Third Party of the Privileged Communications; provided, however, that the Acquisition Entities and Acquired Companies may not waive such privilege without the Company agree prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed). In the event that Buyer or any of the Acquired Companies are legally required or requested by governmental order or otherwise (any such request or order, a “Legal Request”) to assert that any privilege has been waived as to access or obtain a copy of all or a portion of the SPAC Counsel Privileged Communications, Buyer shall be entitled to access or obtain a copy of and disclose the Privileged Communications for the sole purpose of complying with any such Legal Request. In the event of any Legal Request, Buyer shall, to the extent legally permitted under applicable Law (including applicable Law restricting the disclosure of confidential supervisory information) and not impracticable after using reasonable efforts, promptly notify Seller in writing (prior to the disclosure by virtue Buyer of any Privileged Communications to the Transactionsextent practicable) so that Seller may attempt to seek a protective order, and ▇▇▇▇▇ agrees to use all commercially reasonable efforts (at the sole cost and expense of Seller) to assist therewith. ▇▇▇▇ ▇▇▇▇▇ is intended to be an express third-party beneficiary of this Section 12.22 (including all definitions of defined terms used in this Section 12.22) and may specifically enforce its terms.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Apogee Enterprises, Inc.)
Conflicts and Privilege. (a) SPAC Acquiror and the Acquisition Entities Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Acquiror, Merger Sub and/or Sponsor, on behalf of their respective Non-Party Affiliates the one hand, and each of their respective successors and assigns the Company, on the other hand, any legal counsel (all such parties, the “Company Counsel Waiving Parties”), that including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ and Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP) that represented Acquiror and/or Sponsor prior to the Closing (“Prior Acquiror Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to Acquiror, and Burneteven though such counsel may have represented Acquiror in a matter substantially related to such dispute, ▇▇or may be handling ongoing matters for Acquiror and/or Sponsor. All communication between or among Prior Acquiror Counsel, on the one hand, and the Acquiror, Merger Sub or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, the Acquiror or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with Acquiror 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 the Acquiror and the View Companies, that all communications in any form or format whatsoever between or among any of Prior Acquiror Counsel, the Acquiror, Merger Sub 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 “Acquiror 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 the Acquiror or the View Companies after the Closing. All Acquiror Deal Communications that are attorney-client privileged (the “Privileged Acquiror 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 the Acquiror or the View Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor 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.
(c) Notwithstanding the foregoing, in the event that a dispute arises between the Acquiror or the View Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged Acquiror Deal Communications to such third party. In the event that the Acquiror or the View Companies is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged Acquiror Deal Communications, the Acquiror shall immediately (and, in any event, within two (2) Business Days) notify Sponsor in writing (including by making specific reference to this Section 10.18) so that Sponsor can seek a protective order and the Acquiror and the View Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior Acquiror Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Acquiror Deal Communications by reason of any attorney-client relationship between Prior Acquiror Counsel, on the one hand, and the Acquiror or any View 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 the Acquiror and the View Companies after the Closing, (i) to the extent that the Acquiror or, after the Closing, the View Companies receives or takes physical possession of any Acquiror 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 10.18, and (b) neither the Acquiror nor the View 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 Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Acquiror or any View Company waive the attorney-client or other privilege, or by otherwise asserting that the Acquiror or the View Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Acquiror Deal Communications from Prior Acquiror Counsel so long as such Acquiror 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 Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&PPrior Company Counsel”) may represent has acted as counsel to the equityholders 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, the Acquiror hereby irrevocably waives and agrees not to assert, and agrees to cause the View Companies after the Closing to irrevocably waive and agree not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company or and (ii) Prior Company Counsel’s representation of any member of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) View Companies (collectively, the “Company Counsel WP GroupAdvised Parties”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactions.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders Each of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably parties hereto acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP ▇▇▇▇, P.C. (“Osler▇▇▇▇▇▇▇”) may represent has acted as counsel to the shareholders or holders Acquired Companies and the Sellers in connection with the negotiation of other equity this Agreement and consummation of the Transactions. The Purchaser hereby consents and agrees to, and agrees to cause the Acquired Companies to consent and agree to, ▇▇▇▇▇▇▇ representing the Sellers after the Closing, including with respect to disputes in which the interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Sellers may be directly adverse to the Purchaser and its Affiliates (collectively, including the “SPAC Counsel WP Group”Acquired Companies), and even though ▇▇▇▇▇▇▇ may have represented the Acquired Companies in each casea matter substantially related to any such dispute, solely or may be handling ongoing matters for the Acquired Companies. The Purchaser further consents and agrees to, and agrees to cause the Acquired Companies to consent and agree to the communication by ▇▇▇▇▇▇▇ to the Sellers in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior such representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each any fact known to ▇▇▇▇▇▇▇ arising by reason of SPAC, the Acquisition Entities and the Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or ▇▇▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Partiesthe Acquired Companies. Each of SPACIn connection with the foregoing, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, Purchaser hereby further irrevocably acknowledges waives and agrees not to assert, and agrees to cause the Acquired Companies to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) ▇▇▇▇▇▇▇’▇ prior representation of the Acquired Companies and (ii) ▇▇▇▇▇▇▇’▇ representation of the Sellers prior to and after the Closing.
(b) The Purchaser further agrees, on behalf of itself and, after the Closing, on behalf of the Acquired Companies, that all privileged communications, written communications in any form or oral, format whatsoever between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group▇▇▇▇▇▇▇, on the one hand, and each the Acquired Companies, the Sellers, any of Wachtell Lipton and Oslertheir Subsidiaries, or any of their respective directors, managers, officers, employees or other representatives, on the other hand, made that relate in any way to the negotiation, documentation and consummation of the Transactions or any dispute arising under this Agreement (collectively, the “Deal Communications”) shall be deemed to be retained and owned by the Sellers, shall be controlled by the Sellers, and shall not pass to or be claimed by the Purchaser, the Acquired Companies or any of their Subsidiaries. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sellers. In the event that a dispute arises between the Purchaser or the Acquired Companies, on the one hand, and a third party other than a Seller, on the other hand, the Purchaser or the Acquired Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such third party, and may not waive such privilege without the prior written consent of the Sellers. In the event that the Purchaser, the Company or any of their Subsidiaries is legally required to access or obtain a copy of all or a portion of the Deal Communications, the Purchaser shall immediately notify the Sellers’ Representative in writing so that the Sellers’ Representative can seek a protective order and the Purchaser agrees to use all commercially reasonable efforts to assist therewith. To the extent that files or other materials maintained by ▇▇▇▇▇▇▇ constitute property of its clients, only the Sellers shall hold such property rights and ▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Deal Communications by reason of any attorney-client relationship between ▇▇▇▇▇▇▇, on the one hand, and the Company, on the other hand. The Purchaser agrees that it will not, and that it will cause the Acquired Companies not to, (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Sellers waive the attorney-client or other privilege, or by otherwise asserting that the Purchaser or the Acquired Companies have the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇▇▇▇.
(c) In furtherance of the foregoing, it shall not be a breach of any provision of this Agreement if, prior to the Closing, in connection with the negotiationSellers, preparation, execution, delivery and performance underthe Acquired Companies or any of their Subsidiaries, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliatesdirectors, Subsidiariesmanagers, successors officers, employees or assignsother Representatives takes any action to protect from access or remove from the premises of the Acquired Companies (or any offsite back-up or other facilities) any Deal Communications, agree including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications. In the event that no Person may any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by the Purchaser, the Acquired Companies or any of their Subsidiaries (each, a “Residual Communication”), the Purchaser agrees that it will not, and that it will cause the Acquired Companies, and their respective directors, managers, officers, employees or other representatives not to use or rely on attempt to use any of the SPAC Counsel Privileged Communicationsmeans to access, whether located in the records retrieve, restore, recreate, unarchive or email server of SPAC and its Subsidiaries, in otherwise gain access to or view any Action against or involving Residual Communication for any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionspurpose.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree Buyer, on behalf of their respective Non-Party itself and its Affiliates and each of their respective successors and assigns (all such partieswhich, the “Company Counsel Waiving Parties”)for this purpose, that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of shall be deemed to include the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, and the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or therebyagrees that, notwithstanding its any current or prior representation of the Company and its the Subsidiaries or other Company Counsel Waiving Partiesby Sidley Austin LLP, Sidley Austin LLP shall be allowed to represent Seller and each any of SPAChis Affiliates in any matters and disputes adverse to Buyer, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) and/or any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees Subsidiary that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, either are existing on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, date hereof or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located arise in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Partiesfuture. Each of SPAC, the Acquisition Entities and the CompanyBuyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the SPAC Counsel Waiving PartiesCompany and the Subsidiaries) hereby waives any claim that Buyer, hereby consents thereto and irrevocably waives (and will not assert) the Company or any Subsidiary has or may have that Sidley Austin LLP has a conflict of interestinterest or is otherwise prohibited from engaging in such representation and agrees that, breach of duty if a dispute arises after the Closing between Buyer, the Company or any other objection arising from Subsidiary and Seller or relating any of his Affiliates, then Sidley Austin LLP may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Wachtell Lipton’s Buyer, the Company and/or such Subsidiary and even though Sidley Austin LLP may have represented the Company or ▇▇▇▇▇’▇ prior representation such Subsidiary in a matter substantially related to such dispute. Buyer, on behalf of SPAC itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications between or other SPAC Counsel Waiving Parties. Each of SPACamong Sidley Austin LLP and Seller, the Acquisition Entities and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees any Subsidiary and/or any of their respective Affiliates that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made occur prior to the Closing, in connection with the negotiationattorney-client privilege and the expectation of client confidence belongs to Seller and may be controlled by Seller and shall not pass to or be claimed by Buyer, preparation, execution, delivery and performance under, the Company or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of Subsidiary. Notwithstanding the foregoing, are privileged communications that do not pass to SPACif a dispute arises between Buyer, PubCo or the Company following the Closing, or any Subsidiary and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any a third party other than Seller or an Affiliate of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties Seller after the Closing, and SPACthen the Company or any such Subsidiary (to the extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLP; provided that if the Company or the Subsidiaries elect to waive such privilege, the Acquisition Entities and Company or the Company agree not to assert that any privilege has been waived Subsidiaries, as to the SPAC Counsel Privileged Communicationsapplicable, by virtue shall provide Seller with reasonable advance notice of the Transactionssuch waiver.
Appears in 1 contract
Sources: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. (a) SPAC and the Acquisition Entities hereby agree It is acknowledged by each party hereto, on behalf of their respective Non-Party Affiliates itself and its directors, members, partners, officers, employees and Affiliates, and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇the Company and, through the Company, the Company Equityholder have retained ▇▇▇▇▇ ▇▇Day to act as their legal counsel in connection with the transactions contemplated by this Agreement. Each of Acquiror and Merger Sub hereby agrees that, in the event of any dispute, litigation, claim, proceeding or arbitration (a “Dispute”) arising after the Closing relating to the negotiation, preparation, execution and delivery of this Agreement, the Ancillary Agreements and the consummation of the transactions contemplated hereby (the “Representation”), ▇▇▇▇▇ & ▇▇Day may represent the Company Equityholder and its Affiliates (including their respective direct and indirect owners or shareholders) (collectively, the “Represented Entities”) in such Dispute, even though the interests of the Represented Entities may be directly adverse to Acquiror, the Surviving Company or any of their respective Affiliates, and even though ▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and BurnetDay may formerly have represented Acquiror, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directorsAffiliates in a matter substantially related to such Dispute, members, partners, officers, employees or Affiliates (other than SPACmay be handling ongoing matters for Acquiror, the Acquisition Entities Company or any of their respective Subsidiaries) (collectivelyAffiliates. Acquiror and Merger Sub, on behalf of themselves and the “Company Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Company Counsel Waiving Parties, hereby consent to and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives waive (and will not assert) any conflict of interest, breach of duty interest or any other claim or objection arising from therefrom or relating to thereto.
(b) Acquiror and ▇▇▇▇▇▇ Sub further agrees that all communications among ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of Day, the Company, its Subsidiaries or of the Company Counsel Waiving Parties. SPAC, the Acquisition Entities Equityholder and the Company, for itself and Represented Entities that relate in any way to the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that Representation (including all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Company Counsel WP Group, on client files and records in the one hand, and each possession of ▇▇▇▇▇▇ ▇▇Day related thereto) constitute attorney-client privileged communications between the Represented Entities and ▇▇▇▇▇ and BD&P, on the other hand, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates Day (collectively, the “SPAC Counsel WP GroupPrivileged Deal Communications”), in each caseand the attorney-client privilege and the expectation of client confidence belongs to the Represented Entities, solely in connection with any Action may be controlled by the Represented Entities and shall not pass to or obligation arising out of or relating to this Agreementbe claimed by Acquiror, any Ancillary Document the Company or the Transactions contemplated Surviving Company. All Privilege Rights shall survive the Closing and remain in full force and effect thereafter. Effective as of the Closing, all Privilege Rights are hereby or therebyassigned by the Company to, notwithstanding its prior representation of SPAC and its Subsidiariesshall be controlled, or other SPAC Counsel Waiving Parties. Each of SPACfrom and after the Closing, exclusively by, the Acquisition Entities Represented Entities. From and after the Closing, Acquiror and the Surviving Company, on behalf of itself and the SPAC Counsel Waiving Parties, hereby consents thereto waives and irrevocably waives (shall not assert any attorney-client privilege with respect to the Privileged Deal Communications. Notwithstanding the foregoing, if a Dispute arises between Acquiror or the Surviving Company and will a third party, Acquiror or the Surviving Company may assert confidentiality protection or the attorney-client privilege with respect to the Privileged Deal Communications to prevent the disclosure thereof; provided, however, that the Surviving Company may not assert) any conflict waive such privilege without the prior written consent of interest, breach of duty or any other objection arising from or relating to Wachtell Lipton’s or the Company Equityholder. ▇▇▇▇▇’▇ prior representation Day shall not have any duty whatsoever to reveal or disclose any of SPAC and its Subsidiaries, the Privileged Deal Communications or other SPAC Counsel Waiving Parties. Each files to any of SPACAcquiror, the Acquisition Entities Surviving Company or any of the Waiving Parties by reason of any attorney-client relationship between ▇▇▇▇▇ Day and the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written Surviving Company or oral, between SPAC or its Subsidiaries, or any other member of the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to SPAC, PubCo or the Company following the Closing, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Transactionsotherwise.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Welsbach Technology Metals Acquisition Corp.)