Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing. (b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (ExcelFin Acquisition Corp.)
Conflicts and Privilege. Buyer, on behalf of itself and its Affiliates (awhich, for this purpose, shall be deemed to include the Company and its Subsidiaries) SPAC and the Xxxxxxx Parties hereby agree agrees that, notwithstanding any current or prior representation of Parent, the Company and/or any Subsidiary of the Company by Xxxxx & Xxxxxxx LLP, Xxxxx & Xxxxxxx 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 event a dispute with respect future and, in each case, relate to the negotiation, documentation and consummation of this Agreement or the Transactions 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 their respective Affiliates have or may have that Xxxxx & Xxxxxxx LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and (ii) agrees that, if a dispute arises after the Closing between Buyer, the Company, any Subsidiary of the Company or among the Surviving Corporation or the Sponsorany of their respective Affiliates, on the one hand, and any Xxxxxxx Companyor all of Parent and its Affiliates, on the other hand, that Shearman then Xxxxx & Sterling Xxxxxxx LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor any or all of Parent and its Affiliates in such dispute even though the interests of the Sponsor any or all of Parent and its Affiliates may be directly adverse to those Buyer, the Company, any Subsidiary of the Surviving Corporation, Company and/or their respective Affiliates and even though such counsel Xxxxx & Xxxxxxx LLP may have represented SPAC the Company and/or any of its Subsidiaries in a matter substantially related to such dispute, dispute or may be handling ongoing matters for SPAC or Buyer, the SponsorCompany, any Subsidiary of the Company and/or their respective Affiliates. All communication 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 Prior SPAC CounselXxxxx & Xxxxxxx LLP and Parent, on the one handCompany, any Subsidiary of the Company and/or any of their respective Affiliates that relate to the negotiation, documentation and the Surviving Corporation consummation of this Agreement or the SponsorTransactions, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the SponsorParent, shall be controlled by the Sponsor Parent and shall not pass to or be claimed by Buyer, the Company or any Xxxxxxx Party or the Surviving Corporation following the Closingof its Subsidiaries. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under if a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, all communications in any form or format whatsoever dispute arises 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, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelyBuyer, the “SPAC Deal Communications”) shall be deemed to be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving CorporationSubsidiaries, on the one hand, and a third party (other than the SponsorParent or any of their respective Affiliates), on the other hand, after the Sponsor Closing, then Buyer, the Company or any of its Subsidiaries, to the extent applicable, may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications involving Xxxxx & Xxxxxxx LLP; provided, and no Xxxxxxx however, that neither the Company nor the Surviving Corporation any of its Subsidiaries may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithParent.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Unit Purchase Agreement (Watts Water Technologies Inc)
Conflicts and Privilege. Buyer, Parent, Company and NewCo agree that notwithstanding any current or prior representation of Parent and/or its Affiliates by Xxxxx Xxxxx 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) SPAC 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 the Xxxxxxx Parties hereby (b) agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer or among the Surviving Corporation or the Sponsor, any of its Affiliates (on the one hand, ) and Parent or any Xxxxxxx Company, of its Affiliates (on the other hand), that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) MB may represent the Sponsor Parent or such Affiliate in such dispute even though the interests of the Sponsor Parent or such Affiliate may be directly adverse to those of the Surviving Corporation, Buyer or its Affiliates (including NewCo) and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or MB may be handling ongoing matters for SPAC Buyer or NewCo. Buyer further agrees, and agrees to cause its Affiliates (including, after the Sponsor. All communication 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 Prior SPAC CounselMB and Parent and any of its Affiliates (including, on prior to the one handClosing, and NewCo) that relate in any way to this Agreement, the Surviving Corporation transactions contemplated herby, the Isle Excluded Assets or the SponsorIsle Excluded Obligations or NewCo, on its Affiliates or any of their respective operations for the other handperiod ending at the Closing, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsorbelongs to, shall and may be controlled by the Sponsor by, Parent and shall will not pass to or be claimed by any Xxxxxxx Party Buyer or its Affiliates (including, after the Surviving Corporation following Closing, NewCo). Accordingly, none of Buyer or its Affiliates (including NewCo) will have access to such communications from and after the Closing. Notwithstanding the foregoingforegoing in this Section 11.17, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Company Buyer or the Surviving Corporation, on the one hand, its Affiliates (including NewCo) and a third party other than a party to this Agreement or its Affiliates after the SponsorClosing, on the other hand, the Sponsor NewCo may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by MB to such unaffiliated third party; provided, and no Xxxxxxx Company nor the Surviving Corporation however, that NewCo may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorParent. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy This Section 11.17 will be irrevocable, and no term of all or a portion of the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided11.17 may be amended, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 informationwaived, or by seeking to have modified, without the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company after the Closing has the right to waive the attorney-client or other privilege prior written consent of Parent 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 partyBuyer.
(f) Each of the Parties acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Isle of Capri Casinos Inc)
Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert Steptoe & Xxxxxxx LLP and The Law Office of Xxxxx Xxxxxx PC (collectively, “Prior Company Counsel”) has have acted as counsel to Company, Company Subsidiary, Seller, the Xxxxxxx Companies in various matters involving a range Non-Target Parties and each of issues and as counsel to the Xxxxxxx Companies shareholders of Seller in connection with the negotiation, preparation, execution, authorization or performance negotiation of this Agreement and the Ancillary Agreements and the consummation of the Transactionstransactions contemplated hereby.
(a) Buyer hereby consents and agrees to, and agrees to cause, Company 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 the 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 any matter or dispute under this Agreementthe foregoing, SPAC Buyer hereby irrevocably waives and agrees not to assert assert, and agrees to cause Company to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Xxxxxxx Companies Company and Company Subsidiary and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) Seller Parties prior to and after the Closing, including the communication by Counsel to the Seller Parties in connection with any such representation. Notwithstanding the foregoing, this consent and waiver of the right to assert any conflict of interest is solely limited to matters arising in connection with the negotiation and documentation of this Agreement, the Related Agreements and the transactions contemplated hereby and thereby. Nothing in this Section 9.12 shall constitute a waiver of any attorney-client privilege or any privilege associated with Company or Company Subsidiary on any matter (other than Counsel’s representation of Company or Company Subsidiary in connection with this Agreement, the Related Agreements, and the 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 Trusts (including their respective trustees and beneficiaries), on the one hand, and Counsel, on the other hand, in the course of the negotiation and documentation of this Agreement and the Related Agreements shall be deemed to be attorney-client confidences that belong solely to Seller and the Trusts (and not Company or Company Subsidiary) and may be controlled by Seller and the Trusts. Without limiting the generality of the foregoing, upon and after the Closing, Seller, the 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 Related Agreements, and neither Company nor Company Subsidiary shall be a holder thereof.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Everbridge, Inc.)
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 Company in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby.
(b) Acquiror hereby consents and agrees that, and agrees to cause, the Surviving Corporation to consent and agree that, Citron may represent the Securityholders’ Representative and any of the Company Securityholders (collectively, the “Seller Parties”) 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 claims that may be made thereunder pursuant to this Agreement or 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 from Citron’s representation of 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, the Escrow Agreement and the Xxxxxxx Parties transactions contemplated hereby agree thatand thereby. Nothing in this Section 10.11 shall constitute a waiver of any attorney client privilege or any privilege associated with the Company on any matter (other than Citron’s representation of the Company in connection with this Agreement, the other Ancillary Agreements, and 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 professional conduct regarding the confidentiality of any client information of the Company other than as it pertains to Citron’s representation of the Company in connection with this Agreement, the other Ancillary Agreements and the transactions contemplated hereby and thereby.
(c) All pre-Closing communications involving attorney client confidences between the Company and the Company Securityholders, on the one hand, and Citron, on the other hand, in the course of and relating to the negotiation and documentation of this Agreement and the Ancillary Agreements shall be deemed to be attorney client confidences that belong solely to the Company Securityholders (and not the Company) and may be controlled by the Company Securityholders. Without limiting the generality of the foregoing, upon and after the Closing, the Company Securityholders and their 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, and the Company shall not be a holder thereof; provided, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between Acquiror or among any of its Affiliates (including the Surviving Corporation or the SponsorCorporation), on the one hand, and any Xxxxxxx Companyother Person other than the Company Securityholders or their respective Affiliates, on the other hand, that Shearman & Sterling LLP (or any each of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, Acquiror and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order such pre-Closing communications 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference prevent disclosure thereof to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithsuch Person.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Cure Pharmaceutical Holding Corp.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Company, WBCP QP and Wxxxxxx Xxxxx Capital Partners VII, LP (atogether with WBCP QP, "WBCP") SPAC have retained K&E to act as its counsel in connection with the transactions contemplated hereby and that K&E has not acted as counsel for any other party in connection with the Xxxxxxx Parties transactions contemplated hereby agree and that none of the other parties has the status of a client of K&E for conflict of interest or any other purposes as a result thereof. The Buyer hereby agrees that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or Buyer and WBCP (including WBCP QP, in its capacity as the SponsorSellers' Representative), on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) K&E may represent WBCP (including WBCP QP, in its capacity as the Sponsor Sellers' Representative) in such dispute even though the interests of WBCP (including WBCP QP, in its capacity as the Sponsor Sellers' Representative) may be directly adverse to those of the Surviving CorporationBuyer, the Company or the Subsidiaries, and even though such counsel K&E may have represented SPAC the Company or the Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Buyer, the Company or the SponsorSubsidiaries. All communication between or Buyer further agrees that, as to all communications among Prior SPAC CounselK&E, on the one handCompany, the Subsidiaries and WBCP (including WBCP QP, in its capacity as the Surviving Corporation or Sellers' Representative) that relate in any way to the Sponsortransactions contemplated by this Agreement, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to WBCP (including WBCP QP, in its capacity as the Sponsor, shall Sellers' Representative) and may be controlled by the Sponsor WBCP and shall not pass to or be claimed by any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelyBuyer, the “SPAC Deal Communications”) shall be deemed to be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the ClosingSubsidiaries. 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx the Buyer, the Company or the Surviving Corporation, on the one hand, Subsidiaries and a third party other than a party to this Agreement after the Sponsor, on the other handClosing, the Sponsor Company and the Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by K&E to such third party; provided, and no Xxxxxxx however, that neither the Company nor the Surviving Corporation Subsidiaries may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithWBCP.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Devry Inc)
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the parties hereto that ACAS, ACEI, ACEII, the Company and the Xxxxxxx Parties Securityholder Representative have retained PB and Axxxxx & Pxxxxx LLP (“AP”) to act as their counsel in connection with the transactions contemplated hereby agree and that neither PB nor AP has acted as counsel for any other party in connection with the transactions contemplated hereby and that none of the other parties has the status of a client of PB or AP for conflict of interest or any other purposes as a result thereof. The Buyer hereby agrees that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation Buyer, ACAS, ACEI, ACEII or the SponsorSecurityholder Representative, on the one handPB or AP may represent ACAS, and any Xxxxxxx CompanyACEI, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC ACEII or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor Securityholder Representative in such dispute even though the interests of ACAS, ACEI, ACEII or the Sponsor Securityholder Representative may be directly adverse to those of Buyer, the Surviving Corporationother Securityholders, the Company or the Subsidiaries, and even though such counsel PB or AP, as applicable, may have represented SPAC the Company or the Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Buyer, the Company or the SponsorSubsidiaries. All communication between The Buyer further agrees that, as to all communications among PB or among Prior SPAC Counsel, on the one hand, AP and the Surviving Corporation or Company, any Subsidiary, ACAS, ACEI, ACEII and/or the SponsorSecurityholder Representative that relate in any way to the transactions contemplated by this Agreement, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Securityholder Representative and may be controlled by the Sponsor Securityholder Representative and shall not pass to or be claimed by any Xxxxxxx Party or the Surviving Corporation following Buyer, the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the ClosingSubsidiary. 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx the Buyer, the Company or the Surviving Corporation, on the one hand, any Subsidiary and a third party other than a party to this Agreement after the Sponsor, on the other handClosing, the Sponsor Company or such Subsidiary may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by PB or AP to such third party; provided, and no Xxxxxxx however, that neither the Company nor the Surviving Corporation such Subsidiary may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company PB or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shallAP, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to applicable. Each of PB and AP is an intended third party beneficiary of this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies 8.06 and the Surviving Corporation agree shall be entitled 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 the 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, rely on the one hand, and any Xxxxxxx Company or the Surviving Corporation 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 partyprovisions hereof.
(e) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. Buyer, on behalf of itself and its Affiliates (a) SPAC which, for this purpose, shall be deemed to include the Company and the Xxxxxxx Parties hereby agree Subsidiaries) agrees that, notwithstanding any current or prior representation of the Company and the Subsidiaries by Sidley Austin LLP, Sidley Austin LLP shall be allowed to represent Seller and any of his Affiliates in any matters and disputes adverse to Buyer, the Company and/or any Subsidiary that either are existing on the Effective Date or arise in the event future. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries) hereby waives any claim that Buyer, the Company or any Subsidiary has or may have that Sidley Austin LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and agrees that, if a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer, the Company or among the Surviving Corporation or the Sponsor, on the one hand, any Subsidiary and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (Seller or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) his Affiliates, then Sidley Austin LLP may represent the Sponsor Seller or such Affiliate in such dispute even though the interests of the Sponsor Seller or such Affiliate may be directly adverse to those of Buyer, the Surviving Corporation, Company and/or such Subsidiary and even though such counsel Sidley Austin LLP may have represented SPAC the Company or such Subsidiary in a matter substantially related to such dispute. Buyer, or may on behalf of itself and its Affiliates (which, for this purpose, shall be handling ongoing matters for SPAC or deemed to include the Sponsor. All communication Company and the Subsidiaries), also agrees that, as to all communications between or among Prior SPAC CounselSidley Austin LLP and Seller, on the one handCompany, and any Subsidiary and/or any of their respective Affiliates that occur prior to the Surviving Corporation or Closing, the Sponsor, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Seller and may be controlled by the Sponsor Seller and shall not pass to or be claimed by Buyer, the Company or any Xxxxxxx Party or the Surviving Corporation following the ClosingSubsidiary. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Buyer, the Company or the Surviving Corporation, on the one hand, any Subsidiary and a third party other than Seller or an Affiliate of Seller after the SponsorClosing, on then the other hand, Company or any such Subsidiary (to the Sponsor extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party, and no Xxxxxxx Company nor party of confidential communications by Sidley Austin LLP; provided that if the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order Subsidiaries elect to access or obtain a copy of all or a portion of waive such privilege, the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation after the ClosingSubsidiaries, on the other handas applicable, so long as shall provide Seller with reasonable advance notice of 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 partywaiver.
(e) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. Each of the Parties hereto acknowledges and agrees that Xxxxxxx Procter LLP (a“Xxxxxxx”) SPAC has acted as counsel to the Company Entities, their Subsidiaries and the 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, Xxxxxxx Parties hereby agree thatrepresenting the Seller after the Closing, in the event a dispute including with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor disputes in such dispute even though which the interests of the Sponsor Seller may be directly adverse to those of the Surviving Corporation, Purchaser 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 or its Affiliates (including the SponsorCompany Entities and their Subsidiaries). All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties The Purchaser further agrees, on behalf of itself and its Affiliates, thatand, after the Closing, on behalf of the Company Entities and their Subsidiaries, that all communications in any form or format whatsoever between or among any of Prior SPAC CounselXxxxxxx, SPAC or the SponsorSeller, the Company Entities and/or any of their Subsidiaries, or any of their respective Representatives directors, officers, employees or other representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Transaction (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned by the SponsorSeller, shall be controlled by the Sponsor Seller, and shall not pass to or be claimed by the Purchaser, the Company Entities or any Xxxxxxx Company or the Surviving Corporation after the Closingof their Subsidiaries. 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 the SponsorSeller, shall be controlled by the Sponsor Seller and shall not pass to or be claimed by any Xxxxxxx Purchaser, the Company or the Surviving Corporation after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor Entities 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) their Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Purchaser, any Xxxxxxx Company Entity or the Surviving Corporationa Subsidiary, on the one hand, and a third party other than the SponsorSeller, on the other hand, the Sponsor Purchaser, the Company Entities or the Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, and no Xxxxxxx however, that none of the Purchaser, the Company nor the Surviving Corporation Entities or any Subsidiary may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSeller. In the event that the Purchaser, any Xxxxxxx Company Entity or the Surviving Corporation any of their Subsidiaries 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 the Purchaser shall promptly as practicable (and, in any event, within two five (5) Business Days after becoming aware thereofDays) notify the Sponsor Seller in writing (including by making specific reference to this Section 12.18Section) so that the Sponsor Seller can seek a protective order; provided, further, that the Xxxxxxx Companies order and the Surviving Corporation agree Purchaser agrees to use all commercially reasonable efforts (at the sole expense of Seller) to assist therewith.
(d) . To the extent that files or other materials maintained by Prior SPAC Counsel Xxxxxxx constitute property of its clients, only the Sponsor Seller shall hold such property rights, rights and Prior SPAC Counsel Xxxxxxx 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 CounselXxxxxxx, on the one hand, and any Xxxxxxx Company Entity or the Surviving Corporation after the Closingits Subsidiaries, on the other hand. The Purchaser agrees that it will not, 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) Xxxxxxx agrees, on behalf of itself and each of that it will cause the Xxxxxxx Companies Company Entities and the Surviving Corporation after the Closingtheir Subsidiaries not to, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 intentionally access or use the SPAC Privileged Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Surviving Corporation or any Xxxxxxx Company Seller waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation Purchaser, any Company Entity or any Xxxxxxx of the Company after the Closing Entities’ Subsidiaries has the right to waive the attorney-client or other privilege and or (iiiii) not to seek to obtain the SPAC Privileged Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would Xxxxxxx. Notwithstanding the foregoing, Purchaser shall not 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance 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 information relating to the Company Entities and its Subsidiaries belong to the Company Entities and the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under this AgreementSubsidiaries and, 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after following the Closing, Purchaser shall have full rights with respect thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (CEB Inc.)
Conflicts and Privilege. (a) The Company, SPAC and the Xxxxxxx Parties 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 transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of SPAC or the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo or the Surviving Corporation or Corporation) (collectively, the Sponsor“Altimeter Group”), on the one hand, and (y) PubCo, the Surviving Corporation or any Xxxxxxx Companymember of the Grab Group, on the other hand, that Shearman any legal counsel, including Ropes & Sterling Xxxx LLP (or any of its successors “Ropes”), that represented SPAC or the Sponsor prior to the Acquisition Closing (“Prior SPAC Counsel”)) may represent the Sponsor or any other member of the Altimeter Group, in such dispute even though the interests of the Sponsor such Persons may be directly adverse to those of 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 SPAC PubCo, the Surviving Corporation or the Sponsor. All communication 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 Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the Altimeter Group, on the one hand, and the Surviving Corporation or the SponsorRopes, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorAltimeter Group after the Acquisition Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by any Xxxxxxx Party PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Company prior to the Acquisition Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following PubCo and the ClosingSurviving Corporation.
(b) Each of The Company, SPAC and the Xxxxxxx Parties further agreesAcquisition Entities, on behalf of itself their respective successors and its Affiliatesassigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing, all communications in any form or format whatsoever Acquisition Closing between or among any (x) the shareholders or holders of Prior SPAC Counsel, SPAC or other equity interests of the Sponsor, Company or any of their respective Representatives that relate in any way to the negotiationdirectors, preparationmembers, executionpartners, authorization officers, employees or performance of this Agreement and the Ancillary Agreements Affiliates (other than PubCo or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal CommunicationsGrab Group”) shall be deemed to be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation), on the one hand, and a third party other than (y) the SponsorSurviving Corporation or any member of the Altimeter Group, on the other hand, any legal counsel, including Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (“Skadden”) and Xxxxxx Xxxxxxx & Xxxx LLP (“Xxxxxx Xxxxxxx”) that represented the Sponsor Company prior to the Acquisition Closing may assert the attorney-client privilege to prevent the disclosure represent any member of the Privileged SPAC Deal Communications Grab Group in such dispute even though the interests of such Persons may be directly adverse to such third party, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the Sponsor shall hold such property rightsCorporation, and Prior SPAC Counsel shall even though such counsel may have no duty represented the Company in a matter substantially related to reveal such dispute, 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, may be handling ongoing matters for PubCo and any Xxxxxxx Company or the Surviving Corporation after Corporation. The Company, SPAC and 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) Xxxxxxx agreesAcquisition Entities, on behalf of itself their respective successors and each of assigns (including, after the Xxxxxxx Companies and Acquisition Closing, the Surviving Corporation after the ClosingCorporation), (i) further agree that, as to all legally privileged communications prior to the extent that the Surviving Corporation or any Xxxxxxx Company after the Acquisition Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies made in connection with the negotiation, preparation, execution, authorization delivery and performance under, or performance any dispute or Action arising out of this Agreement and the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under relating to, this Agreement, SPAC any Transaction Documents or the transactions contemplated hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (ithereby) Prior between or among the Company Counsel’s prior representation of the Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of or any member of the Xxxxxxx Companies (collectivelyGrab Group, on the one hand, and Skadden or Xxxxxx Xxxxxxx, on the other hand, the “Company Advised Parties”) attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to 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, any privileged communications or information shared by SPAC or Sponsor prior to and after the ClosingAcquisition Closing with the Company under a common interest agreement shall remain the privileged communications or information of PubCo or the Surviving Corporation.
Appears in 1 contract
Samples: Business Combination Agreement (Altimeter Growth Corp.)
Conflicts and Privilege. (a) SPAC The Buyer acknowledges and agrees that the Non-ESOP Sellers and the Xxxxxxx Parties hereby agree thatSeller Representative shall not be precluded from retaining the services of MFS and ESOP Counsel as its legal counsel, and the ESOP Trustee shall not be precluded from retaining the services of Polsinelli as its legal counsel, in the event a of any dispute with respect to this Agreement between the Buyer or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the SponsorSellers, on the other hand, shall remain privileged after because such dispute concerns the Closing and Contemplated Transactions or whether otherwise involving the privilege and Company, notwithstanding, by itself, any result of MFS’s or ESOP Counsel’s prior representation of the expectation Company or Pxxxxxxxxx’x prior representation 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 any Xxxxxxx Party or the Surviving Corporation following the ClosingESOP Trustee. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior 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 officers, directors and employees, only with SPAC respect to pre-Closing communications), on one hand, and MFS, ESOP Counsel or Polsinelli on the Sponsor (in any capacity) under a common interest agreement shall remain other hand, to the extent that the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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 directly relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements or the consummation of the Contemplated Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Privileged Communications”) shall be deemed to be retained and owned by the Sponsor), shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the Closing; provided, furtherhowever, that nothing contained herein shall be deemed to be a waiver by the Sponsor no Seller or any of its Affiliates of any applicable privileges or protections that can or Representatives may be asserted to prevent disclosure of waive any such communications to attorney/client privilege or exception of client confidence in connection with any matter involving a third party.
(c) party without the prior written consent of the Buyer. Notwithstanding the foregoing, in the event that a dispute arises between any Xxxxxxx Company Buyer or its Affiliates (including the Surviving CorporationAcquired Companies), on the one hand, and a third party other than the Sponsorany Seller, on the other hand, Buyer and its Affiliates (including the Sponsor Acquired Companies) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications to such third partyparty and the Buyer and the Sellers will share such privilege with respect to such Privileged Communications solely in respect of any such disputes, and no Xxxxxxx Company provided, however, that neither Buyer nor any of its Affiliates (including the Surviving Corporation Acquired Companies) may waive such privilege with respect to the Privileged Company Deal Communications without the prior written consent of the SponsorSellers’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed. In Except as set forth herein, the event parties hereto agree that only the Sellers shall be entitled to assert such attorney/client privilege in connection with any Xxxxxxx Company or dispute between the Surviving Corporation is legally required parties hereto in connection with such communications following the Closing and the files generated and maintained by Governmental Order to access or obtain MFS, ESOP Counsel and Polsinelli as a copy result of all or a portion MFS’s and ESOP Counsel’s representation of the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (Company and, if applicable, the Non-ESOP Sellers, and as a result of Pxxxxxxxxx’x representation of the ESOP Trustee, in connection with the Contemplated Transaction or any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewith.
(d) To sell the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) Shares to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor Buyer or any other Person shall be and become the exclusive property of the privileges or protections described in this Section 12.18Sellers, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of the Transactionsapplicable. 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.96760364_21
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Acquiror and the Xxxxxxx Parties Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Acquiror, Merger Sub and/or Sponsor, on the one hand, and any Xxxxxxx the Company, on the other hand, that Shearman any legal counsel (including Xxxxxx Xxxxxxx & Sterling Xxxx LLP (or any of its successors and Ellenoff Xxxxxxxx & Schole LLP) that represented SPAC or the Acquiror and/or Sponsor prior to the Closing (“Prior SPAC Acquiror Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of the Surviving CorporationAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the Acquiror and/or Sponsor. All communication between or among Prior SPAC Acquiror Counsel, on the one hand, and the Surviving Corporation Acquiror, Merger Sub or the 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 any Xxxxxxx Party Company, Acquiror or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Company prior to the Closing with SPAC Acquiror or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx the Company following the Closing.
(b) Each of the Xxxxxxx Parties The Company further agrees, on behalf of itself and its Affiliates, thatand, after the Closing, on behalf of Acquiror and the AEye Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Acquiror Counsel, SPAC Acquiror, Merger Sub or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and 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 Acquiror Deal Communications”) shall be deemed to be retained and owned collectively by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company Acquiror or the Surviving Corporation AEye Companies after the Closing. All SPAC Acquiror Deal Communications that are attorney-client privileged (the “Privileged SPAC Acquiror Deal Communications”) 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 any Xxxxxxx Company Acquiror or the Surviving Corporation 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 the event that a dispute arises between any Xxxxxxx Company Acquiror or the Surviving CorporationAEye Companies, on the one hand, and a third party other than the Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Acquiror Deal Communications to such third party, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company Acquiror or the Surviving Corporation AEye Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Acquiror Deal Communications, PubCo shall, as promptly as practicable Acquiror shall immediately (and, in any event, within two (2) Business Days after becoming aware thereofDays) notify the Sponsor in writing (including by making specific reference to this Section 12.1810.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies order and Acquiror and the Surviving Corporation AEye Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Acquiror Counsel constitute property of its clients, only the Sponsor shall hold such property rights, rights and Prior SPAC Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Acquiror Deal Communications by reason of any attorney-client relationship between Prior SPAC Acquiror Counsel, on the one hand, and Acquiror or any Xxxxxxx Company or the Surviving Corporation AEye Companies after the Closing, on the other hand, 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) Xxxxxxx agrees, The Company agrees on behalf of itself and each of the Xxxxxxx Companies Acquiror and the Surviving Corporation AEye Companies after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company Acquiror or, after the Closing Closing, the AEye Companies receives or takes physical possession of any SPAC Acquiror Deal Communications, (Aa) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person Person, of the privileges or protections described in this Section 12.1810.18, and (Bb) none of the Xxxxxxx Companies neither Acquiror nor the Surviving Corporation AEye Companies after the Closing shall assert any claim that the 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 Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Surviving Corporation Acquiror or any Xxxxxxx AEye Company waive the attorney-client or other privilege, or by otherwise asserting that Acquiror or the Surviving Corporation or any Xxxxxxx Company AEye Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Acquiror Deal Communications from Prior SPAC Acquiror Counsel so long as such SPAC 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 parties hereto acknowledges and agrees that Dechert LLP DLA Piper (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies Company in various matters involving a range of issues and as counsel to the Xxxxxxx Companies Company in connection with the negotiation, preparation, execution, authorization or performance negotiation of this Agreement and Agreement, the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under this Agreement, SPAC Acquiror hereby irrevocably waives and agrees not to assert assert, and agrees 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 Xxxxxxx Companies Company and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx 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 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 AEye Companies and shall not pass to or be claimed by Acquiror or the AEye 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 Surviving Corporation and the Company, shall be controlled by Surviving Corporation on behalf of the Company and shall not pass to or be claimed by 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 its Affiliates (including, after the Closing, the AEye Companies and its Affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between 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 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 access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the attorney-client or other privilege, or by otherwise asserting that 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
Samples: Merger Agreement (CF Finance Acquisition Corp. III)
Conflicts and Privilege. The Company, Buyer and Sellers agree that, notwithstanding any current or prior representation of Seller or its Affiliates by O’Melveny & Xxxxx LLP (“OMM”) will be allowed to represent Sellers or any of their respective Affiliates (which will no longer include the Acquired Companies after the Closing) in any matters and disputes, including in any matter or dispute adverse to Buyer and its Affiliates (including, after the Closing, the Acquired Companies) that either is existing on the date hereof or that arises in the future and relates to this Agreement and the Transaction, and Buyer does hereby, and agrees to cause its Affiliates (including, after the Closing, the Acquired Companies) to, (a) SPAC waive any claim they have or may have that OMM has a conflict of interest or is otherwise prohibited from engaging in such representation and the Xxxxxxx Parties hereby (b) agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer or among the Surviving Corporation or the Sponsor, any of its Affiliates (on the one hand, ) and Sellers or any Xxxxxxx Company, of their respective Affiliates (on the other hand), that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) OMM may represent the Sponsor Sellers or such Affiliate in such dispute even though the interests of the Sponsor Sellers or such Affiliate may be directly adverse to those of Buyer or its Affiliates (including the Surviving Corporation, Acquired Companies) and even though such counsel OMM may have represented SPAC any Acquired Company in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Buyer or the SponsorAcquired Companies. All communication between or among Prior SPAC Counsel, on the one handBuyer further agrees, and the Surviving Corporation or the Sponsoragrees to cause its Affiliates (including, on the other hand, shall remain privileged after the Closing Closing, the Acquired Companies) to agree, that, as to all communications among OMM and Sellers and their respective Affiliates (including, prior to the Closing, the Acquired Companies) that relate in any way to the Transaction contemplated by this Agreement, the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsorbelongs to, shall and may be controlled by the Sponsor by, Sellers and shall will not pass to or be claimed by any Xxxxxxx Party Buyer or its Affiliates (including, after the Surviving Corporation following Closing, the Acquired Companies). Accordingly, none of Buyer or its Affiliates (including the Acquired Companies) will have access to such communications or to the files of OMM relating to the Transaction from and after the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Company Buyer or its Affiliates (including the Surviving Corporation, on the one hand, Acquired Companies) and a third party other than a Party to this Agreement after the Sponsor, on the other handClosing, the Sponsor Acquired Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by OMM to such third party; provided, and no Xxxxxxx Company nor however, that the Surviving Corporation Acquired Companies may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSellers. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy This Section 10.11 will be irrevocable, and no term of all or a portion of the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that 10.11 may be amended, waived or modified, without the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithprior written consent of OMM.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 parties hereto acknowledges and agrees that Dechert Xxxxxx Xxxx LLP (“Prior Company CounselTonkon”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range Company, Shareholder Representative, Seller, and each of issues and as counsel to the Xxxxxxx Companies Shareholders in connection with the negotiation, preparation, execution, authorization or performance negotiation of this Agreement and the Ancillary Agreements and the consummation of the Transactionstransactions contemplated hereby.
(a) Buyer hereby consents and agrees to, and agrees to cause, the Company to consent and agree to, Tonkon representing the Shareholder Representative, Seller, and/or any of the 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 any matter or dispute under this Agreementthe foregoing, SPAC Buyer hereby irrevocably waives and agrees not to assert assert, and agrees to cause the Company to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company CounselTonkon’s prior representation of the Xxxxxxx Companies Company and (ii) Prior Company CounselTonkon’s representation of any member of the Xxxxxxx Companies (collectivelyShareholder Representative, Seller and the “Company Advised Parties”) 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 the right to assert any conflict of interest is solely limited to matters arising in connection with the negotiation and documentation of this Agreement, the 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 any matter (other than Tonkon’s representation of the Company in connection with this Agreement, the 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, Seller, the Shareholders or the Shareholder Representative, on the one hand, and Tonkon, on the other hand, 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 Seller, the Shareholders and the Shareholder Representative (and not the Company) and may be controlled by the Seller, the Shareholders and the Shareholder Representative. Without limiting the generality of the foregoing, upon and after the Closing, the Seller, the 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 shall not be a holder thereof.
Appears in 1 contract
Conflicts and Privilege. (a) The Company, SPAC and the Xxxxxxx Parties 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 Surviving Corporation Sponsor, the shareholders or holders of other Equity Securities of SPAC or the SponsorSponsor 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 Xxxxxxx Companymember of the Group Companies, on the other hand, that Shearman & Sterling any legal counsel, including Sidley Austin LLP (“Sidley”), Gill, Godlonton & Gerrans (“GGG”), or any of its successors Ogier (Cayman) LLP (“Ogier”), that represented SPAC or SPAC. the Sponsor and/or any other member of the SPAC Group prior to the Closing (“Prior SPAC Counsel”)) Closing, may represent the Sponsor or any other member of the SPAC Group, in such dispute even though the interests of the Sponsor such Persons may be directly adverse to those PubCo, the SPAC Merger Surviving Corporation, the Company Merger Surviving Corporation, or any member of the Surviving CorporationGroup 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 Sponsorother member of the SPAC Group by Sidley. All communication 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 Transaction Documents or the Transactions) between or among Prior SPAC, the Sponsor or any other member of the SPAC CounselGroup, on the one hand, and the Surviving Corporation Sidley, GGG or the SponsorOgier, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorSPAC Group after the Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by any Xxxxxxx Party PubCo, the SPAC Merger Surviving Corporation, or the Company Merger Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx PubCo and the Company following the ClosingMerger Surviving Corporation.
(b) Each of The Company, SPAC and the Xxxxxxx Parties further agreesAcquisition Entities, on behalf of itself and its Affiliates, that, after the Closing, 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 negotiationsuccessors and assigns, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 foregoinghereby agree that, in the event that a dispute arises between any Xxxxxxx Company with respect to this Agreement or the Surviving CorporationTransactions arises after the Closing between or among (x) the SPAC Group, on the one hand, and a third party other than (y) PubCo, the SponsorCompany, 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 Sponsor Company prior to the Closing may assert represent the attorney-client privilege to prevent the disclosure Company or any other member of the Privileged SPAC Deal Communications Group Companies, in such dispute. No party hereto shall seek to or have GT disqualified from any such third party, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege representation with respect to Privileged Company Deal Communications without this Agreement or the Transactions based upon the prior written consent representation of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy of all or a portion any of the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (and, in other Group Companies by GT. The parties hereto hereby waive any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference potential conflict of interest arising from such prior representation and each party hereto shall cause its respective Affiliates to this Section 12.18) so consent to waive any potential conflict of interest arising from such representation. Each party hereto acknowledges that the Sponsor can seek a protective order; provided, furthersuch consent and waiver is voluntary, that the Xxxxxxx Companies it has been carefully considered, and that such party has consulted with counsel in connection therewith. The Company, SPAC and the Surviving Corporation 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 the 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 CounselAcquisition Entities, on the one handbehalf of their respective successors and assigns (including, and any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies SPAC Merger Surviving Corporation and the Company Merger Surviving Corporation after the ClosingCorporation), (i) further agree that, as to all legally privileged communications prior to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies made in connection with the negotiation, preparation, execution, authorization delivery and performance under, or performance any dispute or Action arising out of this Agreement and the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under relating to, this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from Transaction Documents or in connection with (ithe Transactions) Prior Company Counsel’s prior representation of the Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of between or among any member of the Xxxxxxx Companies (collectivelyGroup Companies, on the one hand, and GT or Appleby, on the other hand, the “Company Advised Parties”) prior attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to and the Group Companies after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx SPAC or the Company, on the other hand, that Shearman & Sterling LLP (or i) any of its successors legal counsel (including Hogan Lovells US LLP) that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of the Surviving CorporationSPAC, and even though such counsel may have represented SPAC prior to the Closing in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or and (ii) any legal counsel (including Allen Overy Shearman Sterling US LLP and McMillan LLP) that represented the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with (“Prior Company Counsel”) may represent the Company, SPAC or any of their respective Affiliates in such dispute even though the Sponsor (interests of SPAC may be directly adverse to Sponsor, and even though such counsel may have represented the Company prior to the Closing in any capacity) under a common interest agreement shall remain the privileged communications or information of matter substantially related to such Xxxxxxx Company following the Closingdispute.
(b) Each of the Xxxxxxx Parties The Company further agrees, on behalf of itself and its Affiliates, thatand, 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 the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization negotiation or performance documentation of this Agreement and 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx SPAC, the Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx SPAC, the Company or the Surviving Corporation their respective Affiliates after the Closing; provided, furtherhowever, 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 any Xxxxxxx SPAC, the Company or the Surviving Corporationtheir respective Affiliates, on the one hand, and a third party other than the 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, and no Xxxxxxx however, that none of SPAC, the Company nor the Surviving Corporation their respective Affiliates may waive such privilege with respect to Privileged Company SPAC Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx SPAC, the Company or the Surviving Corporation any of their respective Affiliates is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo SPAC shall, as promptly as reasonably practicable (and, in any event, within two Business Days after becoming aware thereof) , notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can (at the sole cost and expense of Sponsor) seek a protective order; provided, furtherand SPAC, that the Xxxxxxx Companies Company and the Surviving Corporation their respective Affiliates agree to use all commercially reasonable efforts (at the sole cost and expense of Sponsor) to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the Sponsor shall hold such property rights, 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 any Xxxxxxx SPAC, the Company or the Surviving Corporation any of their respective Affiliates after the Closing, on the other hand, so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) Xxxxxxx agreesSPAC agrees on behalf of itself and, after the Closing, on behalf of itself and each of the Xxxxxxx Companies SPAC and the Surviving Corporation after the ClosingCompany, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company SPAC or, after the Closing Closing, the Company receives or takes physical possession of any SPAC Deal Communications, (A) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person of the privileges or protections described in this Section 12.1811.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation neither SPAC nor, after the Closing Closing, the Company shall assert any claim that the 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 Surviving Corporation or any Xxxxxxx Closing, the Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company SPAC or, after the Closing has Closing, the Company have the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the Parties acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Plum Acquisition Corp. III)
Conflicts and Privilege. Parent, Holdco, Merger Sub and the Company (on behalf of itself and its Subsidiaries) agree that, notwithstanding any current or prior representation of the Company or any of its Subsidiaries by Stroock & Stroock & Lxxxx 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 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) SPAC 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 the Xxxxxxx Parties hereby (b) agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Surviving Pubco, the Surviving Corporation Company, any Subsidiaries of Surviving Pubco or the Sponsor, Surviving Company or any of their respective Affiliates (on the one hand, ) and any Xxxxxxx CompanySeller, the Representative or any of their respective Affiliates (on the other hand), that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) Stroock may represent such Seller, the Sponsor Representative or such Affiliate in such dispute even though the interests of such Seller, the Sponsor Representative or such Affiliate may be directly adverse to those of Surviving Pubco, the Surviving CorporationCompany, any Subsidiaries of Surviving Pubco or the Surviving Company or any of their respective Affiliates and even though such counsel Stroock may have represented SPAC the Company and its Subsidiaries in a matter substantially related to such dispute. Parent, or may be handling ongoing matters for SPAC or Holdco and the Sponsor. All communication Company (on behalf of itself and its Subsidiaries) also further agree that, as to all communications between or among Prior SPAC Counsel, on the one hand, Stroock and the Surviving Corporation Company, any of the Subsidiaries of the Company, any of the Sellers, the Representative and/or any of their respective Affiliates that relate in any way to (i) the business, operations, finances, assets, securities, liabilities or prospects of, or any other matters relating to, the SponsorCompany or any of its Subsidiaries or (ii) any of the transactions contemplated by the Transaction Documents, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Representative and may be controlled by the Sponsor Representative and shall not pass to or be claimed by Parent, Holdco, the Company or any Xxxxxxx Party Subsidiary of Parent, Holdco or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the ClosingCompany.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Each of the parties hereto acknowledges and agrees that Txxxxx Xxxx LLP (“Tonkon”) has acted as counsel to the Company in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby.
(b) Acquiror hereby consents and agrees that, and agrees to cause, the Surviving Corporation to consent and agree that, Tonkon may represent the Securityholders’ Representative and any of the Company Securityholders (collectively, the “Seller Parties”) 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 claims that may be made thereunder pursuant to this Agreement or 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 from Tonkon’s representation of 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, the Escrow Agreement and the Xxxxxxx Parties transactions contemplated hereby agree thatand thereby. Nothing in this Section 10.11 shall constitute a waiver of any attorney client privilege or any privilege associated with the Company on any matter (other than Tonkon’s representation of the Company in connection with this Agreement, the other Ancillary Agreements, and 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 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 other Ancillary Agreements and the transactions contemplated hereby and thereby.
(c) All pre-Closing communications involving attorney client confidences between the Company and the Company Securityholders, on the one hand, and Tonkon, on the other hand, in the course of and relating to the negotiation and documentation of this Agreement and the Ancillary Agreements shall be deemed to be attorney client confidences that belong solely to the Company Securityholders (and not the Company) and may be controlled by the Company Securityholders. Without limiting the generality of the foregoing, upon and after the Closing, the Company Securityholders and their 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, and the Company shall not be a holder thereof; provided, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between Acquiror or among any of its Affiliates (including the Surviving Corporation or the SponsorCorporation), on the one hand, and any Xxxxxxx Companyother Person other than the Company Securityholders or their respective Affiliates, on the other hand, that Shearman & Sterling LLP (or any each of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, Acquiror and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order such pre-Closing communications 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference prevent disclosure thereof to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithsuch Person.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Cure Pharmaceutical Holding Corp.)
Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the SPAC and/or Sponsor, on the one hand, and any Xxxxxxx the Company, on the other hand, that Shearman any legal counsel (including Xxxxxx Xxxxxxx & Sterling Xxxx LLP, Xxxxxxx Xxxxx LLP (or any of its successors and Ellenoff Xxxxxxxx & Schole LLP) that represented SPAC or the and/or Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of the Surviving CorporationSPAC, and even though such counsel may have represented SPAC prior to the Closing in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the Sponsor. All communication pre-Closing communications between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation SPAC or the 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 any Xxxxxxx Party Company or the Surviving Corporation SPAC following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx the Company following the Closing.
(b) Each of the Xxxxxxx Parties The Company further agrees, on behalf of itself and its Affiliates, thatand, after the Closing, on behalf of SPAC and the Rumble Companies, that all pre-Closing 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, preparation, execution, authorization or performance of this Agreement documentation and 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company SPAC or the Surviving Corporation Rumble 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company SPAC or the Surviving Corporation Rumble Companies after the Closing; provided, further,however, 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 any Xxxxxxx Company SPAC or the Surviving CorporationRumble Companies, on the one hand, and a third party other than the 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, and no Xxxxxxx Company however, that neither SPAC nor the Surviving Corporation Rumble Companies may waive such privilege with respect to Privileged Company SPAC Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company SPAC or the Surviving Corporation Rumble 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, SPAC shall as promptly as practicable (and, in any event, within two (2) Business Days Days) after becoming aware thereof) thereof notify the Sponsor in writing (including by making specific reference to this Section 12.18Section 10.18) so that the Sponsor can (at the cost and expense of Sponsor) seek a protective order; provided, further, that the Xxxxxxx Companies and SPAC and the Surviving Corporation Rumble 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 the Sponsor shall hold such property rights, 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 or any Xxxxxxx Company or the Surviving Corporation Rumble 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) Xxxxxxx agreesSPAC agrees on behalf of itself and, after the Closing, on behalf of itself and each of the Xxxxxxx Companies SPAC and the Surviving Corporation after the ClosingRumble Companies, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company SPAC or, after the Closing Closing, the Rumble Companies receives or takes physical possession of any SPAC Deal Communications, (Aa) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person of the privileges or protections described in this Section 12.18Section 10.18, and (Bb) none of the Xxxxxxx Companies neither SPAC nor the Surviving Corporation Rumble Companies after the Closing shall assert any claim that the 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 the Surviving Corporation SPAC or any Xxxxxxx Rumble Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC or the Surviving Corporation or any Xxxxxxx Company Rumble Companies after the Closing has have the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the Parties acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (CF Acquisition Corp. VI)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that each of the Securityholders’ Representative and SupplyPike has retained Xxxxxxx Procter LLP (a“Xxxxxxx”) SPAC to act as its counsel in connection with the Contemplated Transactions. Parent and the Xxxxxxx Parties Merger Sub hereby agree that, that in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between Parent or among the Surviving Corporation or the Sponsorany of its Subsidiaries, on the one hand, and the Securityholders’ Representative or any Xxxxxxx Companyof the Securityholders or SupplyPike, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) Xxxxxxx may represent the Sponsor Securityholders’ Representative, Securityholders and/or SupplyPike in such dispute even though the interests of the Sponsor Securityholders’ Representative, Securityholders and/or SupplyPike may be directly adverse to those Parent or any of the Surviving Corporationits Subsidiaries, and even though such counsel Xxxxxxx may have represented SPAC the Company in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Surviving Corporation or the Sponsorits Subsidiaries. All communication Parent and Merger Sub further agree that, as to all communications between or among Prior SPAC CounselXxxxxxx, on the one hand, and the Surviving Corporation or Company, the SponsorSecurityholders’ Representative, any Securityholder and/or SupplyPike, on the other hand, shall remain privileged after that relate in any way to the Closing and Contemplated Transactions or a similar transaction prior to the Closing, the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the SponsorSecurityholders’ Representative and the Securityholders, shall or with respect to matters under the SupplyPike Agreements, SupplyPike, and may be controlled by the Sponsor Securityholders’ Representative and Securityholders, or with respect to matters under the SupplyPike Agreements, SupplyPike, and shall not pass to or be claimed by any Xxxxxxx Party or Parent, Merger Sub, the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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) Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between any Xxxxxxx Company or Parent, the Surviving CorporationCorporation or any of its Subsidiaries, on the one hand, and a third party other than the SponsorSecurityholders’ Representative, a Securityholder or SupplyPike, on the other hand, Parent, the Sponsor Surviving Corporation or any of its Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications to such third party; provided, and no Xxxxxxx Company nor however, that neither Parent, the Surviving Corporation or its Subsidiaries may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 informationSecurityholders’ Representative, or by seeking with respect to have matters under the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilegeSupplyPike Agreements, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 partySupplyPike.
(f) Each of the Parties acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Hub Group, Inc.)
Conflicts and Privilege. (a) SPAC Recognizing that Xxxxxxx Procter LLP (“Xxxxxxx”) has acted as legal counsel to the Selling Securityholders and the Securityholder Representative (the “Selling Securityholder Parties”) and the Acquired Companies in connection with the negotiation of this Agreement and the transactions contemplated hereby prior to the Closing, and that Xxxxxxx expects to act as legal counsel to each of the Selling Securityholder Parties hereby agree thatafter the Closing, in connection with the event a dispute transactions contemplated hereby, each of Buyer and the Surviving Company (including on behalf of the Acquired Companies after the Closing) hereby:
(i) waives, and agrees to cause its Affiliates to waive, any conflicts that may arise in connection with Xxxxxxx representing any of the Selling Securityholder Parties and/or their respective Affiliates after the Closing with respect to disputes related to or arising in connection with this Agreement or and/or any of the Transactions arises transactions contemplated by this Agreement (“Disputes”);
(ii) consents, and agrees to cause its Affiliates to consent and agree to, the communication by Xxxxxxx to any of the Selling Securityholder Parties of any fact known to Xxxxxxx arising by reason of Xxxxxxx’x prior representation of the Acquired Companies in connection with Xxxxxxx’x representation of any of the Selling Securityholder Parties and/or their respective Affiliates after the Closing with respect to any Dispute; provided that, except as required by law, including pursuant to subpoena or other legal proceedings or process (including any deposition, interrogatory or civil or regulatory action or inquiry), no Selling Securityholder Party shall disclose or use any fact so communicated to it that it knows or reasonably should know constitutes confidential or proprietary information of the Acquired Companies for any purpose not related to a Dispute;
(iii) agrees that all communications between or among Xxxxxxx and/or Xxxx X. Xxxxxxx, Xx., General Counsel to the Surviving Corporation or the SponsorAcquired Companies (each a “Counsel”), on the one hand, and any Xxxxxxx Companyof the Acquired Companies and/or the Selling Securityholder Parties, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent extent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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 same relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of transactions contemplated by this Agreement, Agreement or any dispute arising under this Agreement (collectively, the “SPAC Deal Privileged Communications”) shall be deemed to be retained and owned protected by the Sponsorattorney-client privilege; and
(iv) agrees that, upon and after the Closing, (a) to the extent that files maintained by Counsel related to or arising in connection with this Agreement and/or any of the transactions contemplated by this Agreement constitute attorney work product relating to or arising in connection with this Agreement and/or any of the transactions contemplated by this Agreement (“Protected Work Product,” and together with Privileged Communications, “Protected Material”) or Privileged Communications, the Selling Securityholder Parties (and not the Acquired Companies or the Surviving Company) shall hold any property rights in such Protected Material, (b) the Protected Material and the expectation of confidentiality relating thereto belong solely to the Selling Securityholder Parties, shall be controlled by the Sponsor Selling Securityholder Parties on behalf of the Securityholders and shall not pass to or be claimed by any Xxxxxxx Company of Buyer or the Surviving Corporation after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing Acquired Companies, 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 any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the Sponsor shall hold such property rights, and Prior SPAC applicable Counsel shall have no duty whatsoever to reveal or disclose any such files Protected Material to any of Buyer, the Acquired Companies, the Surviving Company or other materials or any Privileged SPAC Deal Communications their Affiliates by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, such counsel and any Xxxxxxx Company of the Acquired Companies or the Surviving Corporation otherwise. Upon and after the Closing, on to the other hand, so long as such extent that files or other materials would be subject to a privilege or protection if they were being requested in a proceeding maintained by an unrelated third party.
(e) Xxxxxxx agrees, on behalf of itself and each Counsel constitute the property of the Xxxxxxx Acquired Companies or the Surviving Company, but not Protected Material, the Acquired Companies and the Surviving Corporation after the ClosingCompany shall be entitled to such materials upon request and, (i) to the extent such files contain Protected Material, Counsel shall redact only such portions as constitute Protected Material; and
(v) agrees that the Surviving Corporation or any Xxxxxxx Company after the Closing receives or takes physical possession of any SPAC Deal Communicationsit will not, and that it will cause its Affiliates not to, (Ax) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 CommunicationsProtected Material, including by way of review of any electronic data, communications or other information, information or by seeking to have the Surviving Corporation or any Xxxxxxx Company Securityholder Representative waive the attorney-client privilege, work product doctrine or other privilege, or by otherwise asserting that any of Buyer, the Surviving Corporation Acquired Companies or any Xxxxxxx Company after the Closing of its Affiliates has the right to assert or waive the attorney-client privilege, the work product doctrine or other privilege and or (iiiy) not to seek to obtain the SPAC Deal Communications Protected Material 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 applicable Counsel. For avoidance of doubt, the provisions of the Parties acknowledges and agrees that Dechert LLP preceding clause (“Prior v)(x) shall not be deemed violated if (1) any employee of Buyer, the Surviving Company Counsel”or the Acquired Companies who is a Selling Securityholder Party accesses or uses any Privileged Communication to which such employee was a party (including by way of review of any electronic data, communications or other information) has acted as counsel to or (2) the Xxxxxxx Companies in various matters involving a range Acquired Companies, the Surviving Company or any of issues and as counsel to the Xxxxxxx Companies their Affiliates maintain or transfer copies of any Protected Material in connection with the negotiationstorage of data and files of the Acquired Companies, preparationthe Surviving Company or any of their Affiliates (regardless of the server, executionnetwork or virtual data location), authorization provided that such access and use shall not result in any waiver of the Selling Securityholder Parties’ attorney-client privilege or performance the work product doctrine with respect to such Protected Material.
(b) Notwithstanding anything in the foregoing provisions of this Agreement and Section 7.10 to the Ancillary Agreements and the consummation of 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 contrary: (i) Prior Company Counsel’s prior representation in the event that Buyer or any of the Xxxxxxx Acquired Companies or any of their respective Affiliates is required by subpoena or other legal proceedings or process (including any deposition, interrogatory or civil or regulatory action or inquiry) to access or obtain a copy of all or a portion of the Protected Material, Buyer shall, as soon as reasonably practicable and to the extent permissible under applicable law, notify the Securityholder Representative so that the Securityholder Representative may, at its own expense, seek a method by which the requested information may be obtained by such regulatory or governmental entity or other Person in a manner (including subject to a protective order, if available) which will not jeopardize any attorney-client privilege or the work product doctrine, and Buyer, the Surviving Company and the Selling Securityholder Parties and their Affiliates shall cooperate in good faith to assist the Securityholder Representative in such endeavor; provided, that if Buyer or any of the Acquired Companies or any of their respective Affiliates are, on the advice of Buyer’s counsel, legally required to access or obtain a copy of all or a portion of any Privileged Communication or Protected Work Product, Buyer or any of the Acquired Companies or any of their respective Affiliates may, without liability hereunder, access or obtain a copy of all or a portion of such Privileged Communication or Protected Work Product which its counsel advises is legally required, but only to the extent and for the purpose legally required; and (ii) Prior in the event that a dispute arises between Buyer, the Surviving Company Counsel’s representation of or any member of the Xxxxxxx Acquired Companies and a third party (collectively, the “Company Advised Parties”other than a Selling Securityholder Party or any of its Affiliates) prior to and after the Closing, the Surviving Company (including on behalf of the Acquired Companies) may assert the attorney-client privilege or the work product doctrine to prevent disclosure of confidential communications by applicable Counsel to such third party; provided, however, that neither the Surviving Company nor any of the Acquired Companies may waive such privilege without the prior written consent of the Securityholder Representative, on behalf of the Selling Securityholder Parties.
Appears in 1 contract
Samples: Acquisition Agreement and Plan of Merger (Envestnet, Inc.)
Conflicts and Privilege. Buyer and the Company agree that, notwithstanding any current or prior representation of the Company by Stroock & Stroock & Xxxxx LLP (“Stroock”), Stroock shall be allowed to represent Seller or any of its Affiliates in any matters and/or disputes (or any other matter), including in any matter or dispute adverse to Buyer, the Company, or any of their respective Affiliates that either is existing on the date hereof or that arises in the future and relates to this Agreement or any of the other Transaction Documents, or any of the transactions contemplated hereby or thereby, and Buyer and the Company hereby (a) SPAC 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 the Xxxxxxx Parties hereby agree (b) agrees that, in the event that a dispute with respect arises after the Closing relating to this Agreement or the Transactions arises after other Transaction Documents between Buyer, the Closing between Company, or among the Surviving Corporation or the Sponsor, any of their respective Affiliates (on the one hand) and Seller, and or any Xxxxxxx Company, of its Affiliates (on the other hand), that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) Stroock may represent the Sponsor Seller or such Affiliate in such dispute even though the interests of the Sponsor Seller or such Affiliate may be directly adverse to those Buyer, the Company, or any of the Surviving Corporation, their respective Affiliates and even though such counsel Stroock may have represented SPAC the Company in a matter substantially related to such dispute. Buyer and the Company also further agree that, or may be handling ongoing matters for SPAC or as to all communications among Stroock and the Sponsor. All communication between or among Prior SPAC CounselCompany, on the one handSeller, and their respective Affiliates that relate in any way to the Surviving Corporation or transactions contemplated by the SponsorTransaction Documents, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, Seller and shall be controlled by the Sponsor Seller and shall not pass to or be claimed by any Xxxxxxx Party Buyer or the Surviving Corporation following the ClosingCompany. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 after the Closing between any Xxxxxxx Company Buyer or the Surviving Corporation, Company (on the one hand, ) and a third party other than the Sponsor, (on the other hand), other than a party to this Agreement, the Sponsor Company may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by Stroock to such third partyparty and/or may require Seller to assert such privilege; provided, and no Xxxxxxx however, that the Company nor the Surviving Corporation may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithSeller.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Rti International Metals Inc)
Conflicts and Privilege. (a) SPAC and Each of the Xxxxxxx Parties hereby agree that, in the event a dispute with respect parties to this Agreement hereby agrees, on its own behalf and on behalf of its stockholders, directors, officers, employees and affiliates, that Gxxxxxxxx Txxxxxx, LLP (“Gxxxxxxxx”) may serve as counsel to the Company in connection with the negotiation, preparation, execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the Transactions, and that, following consummation of the Transactions, Gxxxxxxxx may serve as counsel to any Indemnifying Stockholder, any Company Stockholder or any stockholder, director, officer, employee or affiliate of any of Indemnifying Stockholder or any Company Stockholder any action, suit or proceeding directly or indirectly arising out of or relating to this Agreement, the Ancillary Agreements or the Transactions arises after or to interpret, apply or enforce this Agreement, the Closing between or among the Surviving Corporation Ancillary Agreements or the SponsorTransactions or for recognition or enforcement of any judgment relating thereto or any other matter, on notwithstanding such representation (or continued representation) of the one handCompany and each of the parties to this Agreement hereby consents thereto and waives any conflict of interest arising therefrom, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or each of such parties shall cause any of its successors that represented SPAC respective affiliates to consent to waive any conflict of interest arising from such representation to the fullest extent permitted by Law.
(b) Each of the Parent Entities further agrees that, as to all communications among Gxxxxxxxx, the Company, the Indemnifying Stockholders or the Sponsor prior Company Stockholders that relate in any way to this Agreement, the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC Ancillary Agreements or the Sponsor. All communication between or among Prior SPAC CounselTransactions, on the one hand, and the Surviving Corporation or the Sponsor, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall relevant Indemnifying Stockholders or Company Stockholders and may be controlled by the Sponsor such Indemnifying Stockholders or Company Stockholders and shall not pass to or be claimed by any Xxxxxxx Party Parent, Merger Sub or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 partyCompany.
(c) Notwithstanding the foregoing, in the event that a dispute arises between any Xxxxxxx Company Parent, Merger Sub or the Surviving CorporationCompany, on the one hand, and a third party other than any Third Party after the Sponsor, on the other handEffective Time, the Sponsor Surviving Corporation may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by Gxxxxxxxx to such third party, and no Xxxxxxx Company nor Third Party; provided that the Surviving Corporation Company may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Relevant Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithInsiders.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Vivakor, Inc.)
Conflicts and Privilege. (a) SPAC Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Xxxxxxx Parties hereby agree Company and its Subsidiaries) agrees that, notwithstanding any current or prior representation of the Company and its Subsidiaries by both Morrison Xxxxx XLX xxx Jaffe Raxxx Xexxx & Weiss, P.X., either or both firms shall be allowed to represent Sellers (and Sellers’ Representative) in any matters and disputes adverse to Buyer and/or the event a dispute with respect Company and its Subsidiaries that relate to this Agreement or the Transactions other Transaction Documents or the transactions contemplated hereby or thereby. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and its Subsidiaries ) hereby (a) waives any claim that Buyer or the Company or any of its Subsidiaries has or may have that either or both of Morrison Xxxxx XLX xxx Jaffe Raxxx Xexxx & Weiss, P.X. xave a conflict of interest or are otherwise prohibited from engaging in such representation and (b) agrees that, if a dispute arises with respect to the transactions contemplated by this Agreement or any other Transaction Document after the Closing between Buyer, the Company or among any of the Surviving Corporation or the SponsorCompany’s Subsidiaries, on the one hand, and any Xxxxxxx CompanySeller (or Sellers’ Representative), on the other hand, that Shearman then either or both of Morrison Xxxxx XLX xxx Jaffe Raxxx Xexxx & Sterling LLP Weiss, P.X. xay represent such Seller (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)and Sellers’ Representative) may represent the Sponsor in such dispute even though the interests of the Sponsor one or more of such Persons may be directly adverse to those Buyer, the Company or one or more of the Surviving Corporation, Company’s Subsidiaries and even though such counsel may Morrison Xxxxx XLX xxx Jaffe Raxxx Xexxx & Weiss, P.X. xay have represented SPAC the Company or one or more of its Subsidiaries in a matter substantially related to such dispute, dispute or may be handling ongoing matters for SPAC Buyer, the Company or a Subsidiary of the SponsorCompany. All communication Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and its Subsidiaries), also agrees that, as to all communications between or among Prior SPAC Counseleither or both of Morrison Xxxxx XLX xxx Jaffe Raxxx Xexxx & Weiss, on P.X. xnd Sellers, Sellers’ Representative, the one handCompany and the Company’s Subsidiaries (with respect to the Company and its Subsidiaries, solely prior to the Closing) and/or any of their respective Affiliates that (i) primarily relate to or were otherwise in anticipation of the transactions contemplated by this Agreement or any other Transaction Document, and (ii) do not include advice (other than with respect to or in anticipation of the Surviving Corporation transactions contemplated by this Agreement or any other Transaction Document) regarding the SponsorBusiness, on 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 other handCompany and its Subsidiaries (the “Sellers’ Retained Privileged Communications”), shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Sellers’ and Sellers’ Representative and may be controlled by the Sponsor Sellers’ Representative and shall not pass to or be claimed by Buyer, the Company or any Xxxxxxx Party or of the Surviving Corporation following the ClosingCompany’s Subsidiaries. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Buyer, the Company or any of the Surviving CorporationCompany’s Subsidiaries, on the one hand, and a third party other than the Sponsor(and unaffiliated with) any Seller or Sellers’ Representative, on the other hand, after the Sponsor Closing, then the Company and its Subsidiaries (to the extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications by Morrison Xxxxx XLX xx Jaffe Raxxx Xexxx & Weiss, and no Xxxxxxx P.X.; provided, however, that none of Buyer, the Company nor or any of the Surviving Corporation Company’s Subsidiaries may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company Sellers’ Representative, which consent shall not be unreasonably withheld, delayed or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithconditioned.
(db) To With respect to (a) the Company; or (b) Sellers’ Representative or Sellers to the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clientsassociated with the Business, only the 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 (i) any attorney-client relationship between Prior SPAC Counsel, on the one hand, privilege and any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection as a result of legal counsel representing the Company or any other right Sellers on or expectation of client confidence applicable prior to any such materials or communicationsthe Closing, (ii) not all documents maintained by legal counsel as a result of representation of the Sellers or the Company on or prior to access or use the SPAC Deal CommunicationsClosing, including by way of review of any electronic data, communications or other information, or by seeking and (iii) all documents subject to have the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company after the Closing has the right to waive the attorney-client or other privilege and work-product protection described in subsection (iii) not to seek to obtain i), shall be 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 property of the Parties acknowledges Company, shall be retained by the Company and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation shall be controlled by Buyer on behalf of the Transactions. In connection with any matter or dispute under this AgreementCompany, 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 each case other than the Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the ClosingSellers’ Retained Privileged Communications.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the parties hereto that Seller and the Xxxxxxx Parties Representative have retained Uxxxx & Berne LLP (“U&B”) to act as their counsel in connection with the transactions contemplated hereby agree 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, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Parent and the Surviving Corporation or Representative (on behalf of the SponsorStockholders), on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) U&B may represent the Sponsor Representative in such dispute even though the interests of the Sponsor Representative may be directly adverse to those of Parent, the other Stockholders, the Surviving CorporationEntity or its Subsidiaries, and even though such counsel U&B may have represented SPAC the Surviving Entity or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Parent, the Surviving Entity or the Sponsorits Subsidiaries. All communication between or Parent further agrees that, as to all communications among Prior SPAC Counsel, on the one hand, U&B and the Surviving Corporation or Entity, any Subsidiary thereof and/or the SponsorRepresentative that relate in any way to the transactions contemplated by this Agreement, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Representative and may be controlled by the Sponsor Representative and shall not pass to or be claimed by any Xxxxxxx Party or Parent, the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, Entity or any of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the ClosingSubsidiary. 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or Parent, the Surviving Corporation, on the one hand, Entity or any Subsidiary and a third party other than a party to this Agreement after the Sponsor, on the other handClosing, the Sponsor Surviving Entity or such Subsidiary may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by U&B to such third party; provided, and no Xxxxxxx Company nor however, that neither the Surviving Corporation Entity nor such Subsidiary may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shallU&B, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to applicable. U&B is an intended third party beneficiary of this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies 10.16 and the Surviving Corporation agree shall be entitled 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 the 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, rely on the one hand, and any Xxxxxxx Company or the Surviving Corporation 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 partyprovisions hereof.
(e) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Universal Business Payment Solutions Acquisition Corp)
Conflicts and Privilege. (a) SPAC Acquiror, the Companies and the Xxxxxxx Parties Holder hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Closing between or among Acquiror, the Surviving Corporation or SCH Designated Directors and/or the Sponsor, on the one hand, and any Xxxxxxx Companythe Companies and/or the Holder, on the other hand, that Shearman any legal counsel (including Skadden, Arps, Slate, Mxxxxxx & Sterling LLP (or any of its successors Fxxx LLP) that represented SPAC or Acquiror, the SCH Designated Directors and/or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the SCH Designated Directors and/or the Sponsor in such dispute even though the interests of the SCH Designated Directors and/or the Sponsor may be directly adverse to those of the Surviving CorporationAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or Acquiror, the SCH Designated Directors and/or the Sponsor. All communication Acquiror, the Companies and the Holder further agree that, as to all legally privileged communications prior to the Closing between or among Prior SPAC Counselany legal counsel (including Skadden, on Arps, Slate, Mxxxxxx & Fxxx LLP) that represented Acquiror, the one hand, and the Surviving Corporation or the Sponsor, on the other hand, shall remain privileged after SCH Designated Directors and/or Sponsor prior to the Closing and any one or more such Persons that relate in any way to the transactions contemplated hereby, the attorney/client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall SCH Designated Directors and may be controlled by the Sponsor such SCH Designated Directors, and shall not pass to or be claimed or controlled by any Xxxxxxx Party or the Surviving Corporation following Acquiror (after giving effect to the Closing), the Companies and the Holder; provided that the SCH Designated Directors shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company the Companies prior to the Closing with SPAC Acquiror, the Sponsor or the Sponsor SCH Designated Directors (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the ClosingSurviving Companies.
(b) Each Acquiror and the Companies hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among the Holder Designated Directors and/or the Holder, on the one hand, and the Companies and/or Acquiror, on the other hand, any legal counsel (including Lxxxxx & Wxxxxxx LLP) that represented the Holder Designated Directors and/or the Holder prior to the Closing may represent the Holder Designated Directors and/or the Holder in such dispute even though the interests of the Xxxxxxx Parties Holder Designated Directors and/or the Holder may be directly adverse to the Acquiror and/or the Companies, and even though such counsel may have represented Acquiror and/or the Companies in a matter substantially related to such dispute, or may be handling ongoing matters for Acquiror, the Companies, the Holder Designated Directors and/or the Holder. Acquiror and the Companies further agrees, on behalf of itself and its Affiliates, agree that, after as to all legally privileged communications prior to the Closing, all communications in any form or format whatsoever Closing between or among any of Prior SPAC Counsellegal counsel (including Lxxxxx & Wxxxxxx LLP) that represented the Companies, SPAC the Holder Designated Directors and/or the Holder prior to the Closing and any one or the Sponsor, or any of their respective Representatives more such Persons that relate in any way to the negotiationtransactions contemplated hereby, preparation, execution, authorization or performance of this Agreement the attorney/client privilege and the Ancillary Agreements or expectation of client confidence belongs to the consummation of Holder and/or 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 Holder Designated Directors and owned by the Sponsor, shall may be controlled by the Sponsor Holder and/or such SCH Designated Directors, and shall not pass to or be claimed or controlled by any Xxxxxxx Company Acquiror (after giving effect to the Closing) or the Surviving Corporation after Companies; provided that the Closing. All SPAC Deal Communications that are Holder and/or the Holder Designated Directors shall not waive such 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 other than to the Sponsor, shall be controlled by extent they determine appropriate in connection with the Sponsor and shall not pass to enforcement or be claimed by any Xxxxxxx Company defense of their respective rights or the Surviving Corporation 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) obligations existing under this Agreement. Notwithstanding the foregoing, in any privileged communications or information shared by Acquiror prior to the event that a dispute arises between any Xxxxxxx Company Closing with the Holder or the Surviving Corporation, on Holder Designated Directors (in any capacity) under a common interest agreement shall remain the one hand, and a third party other than the Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure privileged communications or information of the Privileged SPAC Deal Communications to such third party, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithCompanies.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Social Capital Hedosophia Holdings Corp.)
Conflicts and Privilege. (a) The Company, SPAC and the Xxxxxxx Parties 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 transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of SPAC or the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo or the Surviving Corporation or Corporation) (collectively, the Sponsor“Altimeter Group”), on the one hand, and (y) PubCo, the Surviving Corporation or any Xxxxxxx Companymember of the Grab Group, on the other hand, that Shearman any legal counsel, including Ropes & Sterling Xxxx LLP (or any of its successors “Ropes”), that represented SPAC or the Sponsor prior to the Acquisition Closing (“Prior SPAC Counsel”)) may represent the Sponsor or any other member of the Altimeter Group, in such dispute even though the interests of the Sponsor such Persons may be directly adverse to those of 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 SPAC PubCo, the Surviving Corporation or the Sponsor. All communication 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 Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the Altimeter Group, on the one hand, and the Surviving Corporation or the SponsorRopes, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorAltimeter Group after the Acquisition Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by any Xxxxxxx Party PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Company prior to the Acquisition Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself PubCo and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties Acquisition Entities hereby agree thaton behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that Xxxxxx Xxxxxxx & Xxxxxxx LLP (“Xxxxxx Xxxxxxx”) and Burnet, Xxxxxxxxx & Xxxxxx 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 the event a dispute each case, solely in connection with respect any Action or obligation arising out of or relating to this Agreement Agreement, any Ancillary Document or the Transactions arises after contemplated hereby or thereby, notwithstanding its prior representation of the Closing 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 Xxxxxx Xxxxxxx’x 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 among any member of the Surviving Corporation or the SponsorCompany Counsel WP Group, on the one hand, and any each of Xxxxxx Xxxxxxx Companyand BD&P, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor made prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization delivery and performance under, or performance any dispute or Action arising out of or relating to, this Agreement 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 Ancillary Agreements 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 consummation Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions. In connection with any matter .
(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 Xxxxxxxx, Lipton, Xxxxx & Xxxx (“Xxxxxxxx Xxxxxx”) and Xxxxx, Xxxxxx & Harcourt LLP (“Osler”) may represent the shareholders or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict holders of interest arising from or in connection with (i) Prior Company Counsel’s prior representation other equity interests of the Xxxxxxx Companies and (ii) Prior Company Counsel’s representation Sponsor or of SPAC or any member of the Xxxxxxx Companies their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Company Advised 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 Xxxxx’x 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
Samples: Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Conflicts and Privilege. (a) SPAC Acquiror, Parent and the Xxxxxxx Parties Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Acquiror, Merger Sub and/or Sponsor, on the one hand, and any Xxxxxxx Parent or the Company, on the other hand, that Shearman any legal counsel (including Xxxxxx Xxxxxxx & Sterling Xxxx LLP, CMS Xxxxxxx XxXxxxx Nabarro Olswang LLP (or any of its successors and Ellenoff Xxxxxxxx & Schole LLP) that represented SPAC or the Acquiror and/or Sponsor prior to the Closing (“Prior SPAC Acquiror Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of the Surviving CorporationAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the Acquiror and/or Sponsor. All communication between or among Prior SPAC Acquiror Counsel, on the one hand, and the Surviving Corporation Acquiror, Merger Sub or the Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto 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 any Xxxxxxx Party the Company, Acquiror or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Parent or the Company prior to the Closing with SPAC Acquiror or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx the Company following the Closing.
(b) Each of the Xxxxxxx Parties Parent further agrees, on behalf of itself and its Affiliates, thatand, 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 SPAC Acquiror Counsel, SPAC Acquiror, Merger Sub or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and 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 Acquiror Deal Communications”) shall be deemed to be retained and owned collectively by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company Acquiror or the Surviving Corporation EMEA Companies after the Closing. All SPAC Acquiror Deal Communications that are attorney-client privileged (the “Privileged SPAC Acquiror Deal Communications”) 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 any Xxxxxxx Company Acquiror or the Surviving Corporation 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 any Xxxxxxx Company Acquiror or the Surviving CorporationEMEA Companies, on the one hand, and a third party other than the Sponsor, on the other hand, Acquiror or the Sponsor EMEA Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Acquiror Deal Communications to such third party, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company Acquiror or the Surviving Corporation EMEA Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Acquiror Deal Communications, PubCo shall, as Acquiror shall promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.1810.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies order and Acquiror and the Surviving Corporation EMEA Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Acquiror Counsel constitute Acquiror Deal Communications that is property of its clients, only the Sponsor shall hold such property rights, rights and Prior SPAC Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Acquiror Deal Communications by reason of any attorney-client relationship between Prior SPAC Acquiror Counsel, on the one hand, and Acquiror or any Xxxxxxx Company or the Surviving Corporation EMEA Companies after the Closing, on the other hand, 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) Xxxxxxx agrees, Acquiror agrees on behalf of itself and each of the Xxxxxxx EMEA Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company Acquiror or, after the Closing Closing, the EMEA Companies receives or takes physical possession of any SPAC Acquiror Deal Communications, (Aa) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person Person, of the privileges or protections described in this Section 12.1810.18, and (Bb) none of the Xxxxxxx Companies neither Acquiror nor the Surviving Corporation EMEA Companies after the Closing shall assert any claim that the 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 Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Surviving Corporation Acquiror or any Xxxxxxx EMEA Company waive the attorney-client or other privilege, or by otherwise asserting that Acquiror or the Surviving Corporation or any Xxxxxxx Company EMEA Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Acquiror Deal Communications from Prior SPAC Acquiror Counsel so long as such SPAC 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 parties hereto acknowledges and agrees that Dechert Xxxxxxx Xxxx & Xxxxxxxxx LLP and Xxxx, Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP (each a “Prior Company Counsel”) has acted as counsel to Parent and the Xxxxxxx Companies Company in various matters involving a range of issues and as counsel to the Xxxxxxx Companies Company in connection with the negotiation, preparation, execution, authorization or performance negotiation of this Agreement and Agreement, the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under this Agreement, SPAC Acquiror hereby irrevocably waives and agrees not to assert 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 Xxxxxxx Companies Company and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx EMEA 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 EMEA Companies, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the EMEA Companies, 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 Parent on behalf of 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 or the EMEA Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by Parent or any of its Affiliates (including, after the Closing, the EMEA Companies and its Affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between Acquiror or the EMEA Companies, on the one hand, and a third party other than Parent, on the other hand, Acquiror or the EMEA 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 EMEA Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Parent. 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 Company Deal Communications, Acquiror shall promptly notify Parent in writing (including by making specific reference to this Section 10.18) so that Parent 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 Company Deal Communications that is property of its clients, only Parent 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 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.
(j) 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 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 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 access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Parent 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 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 It is acknowledged by each of the parties hereto that ACAS, ACEI, ACEII, the Company and the Xxxxxxx Parties Securityholder Representative have retained PB and Xxxxxx & Xxxxxx LLP (“AP”) to act as their counsel in connection with the transactions contemplated hereby agree and that neither PB nor AP has acted as counsel for any other party in connection with the transactions contemplated hereby and that none of the other parties has the status of a client of PB or AP for conflict of interest or any other purposes as a result thereof. The Buyer hereby agrees that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation Buyer, ACAS, ACEI, ACEII or the SponsorSecurityholder Representative, on the one handPB or AP may represent ACAS, and any Xxxxxxx CompanyACEI, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC ACEII or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor Securityholder Representative in such dispute even though the interests of ACAS, ACEI, ACEII or the Sponsor Securityholder Representative may be directly adverse to those of Buyer, the Surviving Corporationother Securityholders, the Company or the Subsidiaries, and even though such counsel PB or AP, as applicable, may have represented SPAC the Company or the Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Buyer, the Company or the SponsorSubsidiaries. All communication between The Buyer further agrees that, as to all communications among PB or among Prior SPAC Counsel, on the one hand, AP and the Surviving Corporation or Company, any Subsidiary, ACAS, ACEI, ACEII and/or the SponsorSecurityholder Representative that relate in any way to the transactions contemplated by this Agreement, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Securityholder Representative and may be controlled by the Sponsor Securityholder Representative and shall not pass to or be claimed by any Xxxxxxx Party or the Surviving Corporation following Buyer, the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the ClosingSubsidiary. 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx the Buyer, the Company or the Surviving Corporation, on the one hand, any Subsidiary and a third party other than a party to this Agreement after the Sponsor, on the other handClosing, the Sponsor Company or such Subsidiary may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by PB or AP to such third party; provided, and no Xxxxxxx however, that neither the Company nor the Surviving Corporation such Subsidiary may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company PB or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shallAP, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to applicable. Each of PB and AP is an intended third party beneficiary of this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies 8.06 and the Surviving Corporation agree shall be entitled 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 the 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, rely on the one hand, and any Xxxxxxx Company or the Surviving Corporation 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 partyprovisions hereof.
(e) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. Acquiror, on behalf of itself and its Affiliates (awhich, for this purpose, shall be deemed to include, following the Closing, the Company Group and its Subsidiaries) SPAC and the Xxxxxxx Parties hereby agree agrees that, notwithstanding any current or prior representation of the Company Group and its Subsidiaries by Xxxxx & Lardner LLP and Xxxxxx PLC, Xxxxx & Xxxxxxx LLP and Xxxxxx 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 event a dispute with respect future and relate to this Agreement or the Transactions 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 their respective Affiliates have or may have that Xxxxx & Xxxxxxx LLP or Xxxxxx PLC has a conflict of interest or is otherwise prohibited from engaging in such representation and (ii) agrees that, if a dispute arises after the Closing between Acquiror, the Company Group, any Subsidiary of the Company Group or among the Surviving Corporation or the Sponsor, on the one hand, any of their respective Affiliates and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (Seller or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) Affiliates, then Xxxxx & Xxxxxxx LLP and Xxxxxx PLC may represent the Sponsor Seller or such Affiliate in such dispute even though the interests of the Sponsor Seller or such Affiliate may be directly adverse to those Acquiror, the Company Group, any Subsidiary of the Surviving Corporation, Company Group or their respective Affiliates and even though such counsel Xxxxx & Xxxxxxx LLP and Xxxxxx PLC may have represented SPAC the Company Group or any its Subsidiaries in a matter substantially related to such dispute, dispute or may be handling ongoing matters for SPAC 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 Sponsor. All communication Company Group and its Subsidiaries), agrees that, as to all communications between or among Prior SPAC CounselXxxxx & Xxxxxxx LLP and Xxxxxx PLC and Seller, on the one handCompany Group, and any Subsidiary of the Surviving Corporation Company Group or any of their respective Affiliates that relate in any way to the Sponsortransactions contemplated by this Agreement, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the SponsorSeller, shall be controlled by the Sponsor Seller and shall not pass to or be claimed by Acquiror, the Company Group or any Xxxxxxx Party or the Surviving Corporation following the Closingof its Subsidiaries. Notwithstanding the foregoing, if a dispute arises between Acquiror, the Company Group or any privileged communications of its Subsidiaries and a Third Party (other than Seller or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, ) after the Closing, all communications in any form then the Company Group or format whatsoever between or among any of Prior SPAC Counselits Subsidiary, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiationextent applicable, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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 partyparty of confidential communications by Xxxxx & Xxxxxxx LLP and Xxxxxx PLC; provided, and no Xxxxxxx that neither the Company Group nor the Surviving Corporation any of its Subsidiaries may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithSeller.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Transaction Agreement (Wellcare Health Plans, Inc.)
Conflicts and Privilege. (a) SPAC The Parties, on behalf of their respective successors and assigns (including, after the Xxxxxxx Parties Amalgamation Effective Time, the Amalgamated Company), hereby agree that, in the event a dispute with respect to this Agreement Agreement, any other Transaction Document or the Transactions arises after the Closing Amalgamation Effective Time between or among (x) the Surviving Corporation Sponsor, the shareholders or holders of other Equity Securities of Parent or the SponsorSponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Amalgamated Company) (collectively, the “Parent Group”), on the one hand, and (y) the Amalgamated Company and/or any Xxxxxxx Companymember of the Company Group, on the other hand, that any legal counsel, including Shearman & Sterling LLP (or any of its successors “Shearman”), that represented SPAC or Parent and/or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) Amalgamation Effective Time may represent the Sponsor and/or any other member of the Parent Group in such dispute even though the interests of the Sponsor such Persons may be directly adverse to those of the Surviving CorporationAmalgamated Company, and even though such counsel may have represented SPAC Parent in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the Amalgamated Company and/or the Sponsor. All communication 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 other Transaction Document or the Transactions) between or among Prior SPAC CounselParent, the Sponsor and/or any other member of the Parent Group, on the one hand, and the Surviving Corporation or the SponsorShearman, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Amalgamation and belong solely to the SponsorParent Group after the Amalgamation Effective Time, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by any Xxxxxxx Party or the Surviving Corporation following the ClosingAmalgamated Company. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company the Group Companies prior to the Closing Amalgamation Effective Time with SPAC Parent, Amalgamation Sub or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closingapplicable Group Company.
(b) Each of the Xxxxxxx Parties further agreesThe Parties, on behalf of itself their respective successors and its Affiliates, thatassigns (including, after the ClosingAmalgamation Effective Time, all communications the Amalgamated Company), hereby agree that, in any form the event a dispute with respect to this Agreement, the other Transaction Documents or format whatsoever the Transactions arises after the Amalgamation Effective Time between or among (x) the shareholders or holders of other Equity Securities of any of Prior SPAC Counselthe Group Companies, SPAC or the Sponsor, or Sole Shareholder and/or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (including the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Amalgamated Company) (collectively, the “SPAC Deal CommunicationsCompany Group”) shall be deemed to be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation), on the one hand, and a third party other than (y) any member of the SponsorParent Group, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure any legal counsel, including Xxxxxx Xxxx Xxxxxxxxx US LLP (“Xxxxxx Xxxx”), that represented any of the Privileged SPAC Deal Communications Group Companies or the Sole Shareholder prior to the Amalgamation 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 third partydispute, and no Xxxxxxx Company nor or may be handling ongoing matters for the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without Amalgamated Company, the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Group Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agreesSole Shareholder, on behalf of itself their respective successors and each of the Xxxxxxx Companies and the Surviving Corporation assigns (including, after the ClosingAmalgamation Effective Time, (i) the Amalgamated Company), and further agree that, as to all legally privileged communications prior to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing receives or takes physical possession of any SPAC Deal Communications, Amalgamation Effective Time (A) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies made in connection with the negotiation, preparation, execution, authorization delivery and performance under, or performance any dispute or Action arising out of this Agreement and the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under relating to, this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from other Transaction Documents or in connection with (ithe Transactions) Prior Company Counsel’s prior representation of between or among the Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of Group Companies, the Sole Shareholder and/or any member of the Xxxxxxx Companies (collectivelyCompany Group, on the one hand, and Xxxxxx Xxxx, on the other hand, the “attorney/client privilege and the expectation of client confidence shall survive the Amalgamation and belong to the Company Advised Parties”) Group after the Amalgamation Effective Time, and shall not pass to or be claimed or controlled by the Amalgamated Company. Notwithstanding the foregoing, any privileged communications or information shared by Parent or Amalgamation Sub prior to and after the ClosingAmalgamation Effective Time with the Group Companies or the Sole Shareholder under a common interest agreement shall belong to the Sponsor.
Appears in 1 contract
Samples: Business Combination Agreement (Worldwide Webb Acquisition Corp.)
Conflicts and Privilege. (a) SPAC Acquiror, the Companies, the SIM Sellers and the Xxxxxxx Parties Holder Representatives on behalf of the applicable Pre-Closing Company Holders hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Acquiror, the Surviving Corporation Sponsor-Designated Directors or the Sponsor, on the one hand, and any Xxxxxxx the Company, the Pre-Closing Company Holders or the Holder Representatives, on the other hand, that Shearman any legal counsel (including Skadden, Arps, Slate, Xxxxxxx & Sterling LLP (or any of its successors Xxxx LLP) that represented SPAC Acquiror, the Sponsor-Designated Directors or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor-Designated Directors or Sponsor in such dispute even though the interests of the Sponsor-Designated Directors or Sponsor may be directly adverse to those of the Surviving CorporationAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or Acquiror, the Sponsor-Designated Directors or Sponsor. All communication Acquiror, the Companies, the SIM Sellers and the Holder Representatives on behalf of the applicable Pre-Closing Company Holders further agree that, as to all legally privileged communications prior to the Closing between or among Prior SPAC Counselany legal counsel (including Skadden, on the one handArps, and the Surviving Corporation or Slate, Xxxxxxx & Xxxx LLP) that represented Acquiror, the Sponsor, on the other hand, shall remain privileged after -Designated Directors or Sponsor prior to the Closing and any one or more such Persons that relate in any way to the Transactions, the attorney/client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall -Designated Directors and may be controlled by the Sponsor such Sponsor-Designated Directors, and shall not pass to or be claimed or controlled by any Xxxxxxx Party Acquiror (after giving effect to the Closing), the Companies or the Surviving Corporation following Pre-Closing Company Holders; provided, that the ClosingSponsor-Designated Directors shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Companies or the Pre-Closing Company Holders (other than Granite) prior to the Closing with SPAC Acquiror, Sponsor or the Sponsor Sponsor-Designated Directors (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the ClosingSurviving Corporation.
(b) Each of Recognizing that Xxxxxxxx & Xxxxx LLP has acted as legal counsel to the Xxxxxxx Parties further agreesPanavision Group, on behalf of itself the Principal Panavision Holders, the Panavision Holder Representative and its Affiliatestheir respective Affiliates prior to the Closing, thatand that Xxxxxxxx & Xxxxx LLP intends to act as legal counsel to the Principal Panavision Holders, the Panavision Holder Representative and their respective Affiliates (which will no longer include the Panavision Group) after the Closing, all communications Acquiror hereby waives, on its own behalf and agrees to cause its Affiliates to waive, any conflicts that may arise in any form or format whatsoever between or among connection with Xxxxxxxx & Xxxxx LLP representing any of Prior SPAC Counselthe Principal Panavision Holders, SPAC the Panavision Holder Representative or their Affiliates after the SponsorClosing as such representation may relate to Acquiror, any Company Group or any of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of transactions contemplated by this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 partythe Ancillary Agreements.
(c) Recognizing that Stikeman Elliott LLP has acted as legal counsel to the SIM Group and Granite prior to the Closing, and that Stikeman Elliott LLP intends to act as legal counsel to Granite after the Closing, Acquiror hereby waives, on its own behalf and agrees to cause its Affiliates to waive, any conflicts that may arise in connection with Stikeman Elliott LLP representing Granite after the Closing as such representation may relate to Acquiror, any Company Group or any of the transactions contemplated by this Agreement or any of the Ancillary Agreements. Notwithstanding the foregoing, in the event that a dispute arises between any Xxxxxxx Company privileged communications or the Surviving Corporation, on the one hand, and a third party other than the Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege information shared by Granite prior to prevent the disclosure of the Privileged SPAC Deal Communications to such third party, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that remain the 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, privileged communications or other information, or by seeking to have the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 partyinformation of Granite.
(f) Each of the Parties acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Business Combination Agreement (Saban Capital Acquisition Corp.)
Conflicts and Privilege. 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 Acquired Companies, on behalf of themselves and each of their Affiliates, (a) SPAC 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 the Xxxxxxx Parties hereby (b) agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer or among any of its Affiliates (including, from and after Closing, the Surviving Corporation or the SponsorAcquired Companies), on the one hand, and any Xxxxxxx CompanySeller, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) McGuireWoods may represent the Sponsor Seller in such dispute even though the interests interest of the Sponsor any such party may be directly adverse to those Buyer or any of its Affiliates (including, from and after Closing, the Surviving CorporationAcquired Companies), and even though such counsel McGuireWoods may have represented SPAC the Acquired Companies in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the SponsorAcquired Companies. All communication Buyer further agrees that, as to all communications between or among Prior SPAC CounselMcGuireWoods and Seller that relate in any way to the Transactions, on the one handattorney-client privilege, and the Surviving Corporation or the Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall and all other rights to any evidentiary privilege belong solely to the Sponsor, shall Seller and may be controlled by the Sponsor Seller and shall not pass to or be claimed by any Xxxxxxx Party Buyer or the Surviving Corporation following the ClosingAcquired Companies. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Company Buyer or the Surviving Corporation, on the one hand, Acquired Companies and a third party other than the Sponsor, on the other handa Party after Closing, the Sponsor Acquired Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communication by McGuireWoods to such third party; provided, and no Xxxxxxx Company nor however, that the Surviving Corporation Acquired Companies may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSeller. In the event Seller and Buyer further agree that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy McGuireWoods and its partners and employees are third-party beneficiaries of all or a portion of the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewith10.4.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC It is acknowledged by each party hereto, on behalf of itself and its directors, members, partners, officers, employees and Affiliates, and each of their successors and assigns (all such parties, the Xxxxxxx Parties “Waiving Parties”), that the Company and, through the Company, the Company Equityholder have retained Xxxxx Day to act as their legal counsel in connection with the transactions contemplated by this Agreement. Each of Acquiror and Merger Sub hereby agree agrees that, in the event of any dispute, litigation, claim, proceeding or arbitration (a dispute with respect to this Agreement or the Transactions arises “Dispute”) arising after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior relating to the Closing negotiation, preparation, execution and delivery of this Agreement, the Ancillary Agreements and the consummation of the transactions contemplated hereby (the “Prior SPAC CounselRepresentation”)) , Xxxxx Day may represent the Sponsor Company Equityholder and its Affiliates (including their respective direct and indirect owners or shareholders) (collectively, the “Represented Entities”) in such dispute Dispute, even though the interests of the Sponsor Represented Entities may be directly adverse to those of Acquiror, the Surviving CorporationCompany or any of their respective Affiliates, and even though such counsel Xxxxx Day may formerly have represented SPAC Acquiror, the Company or any of their respective Affiliates in a matter substantially related to such disputeDispute, or may be handling ongoing matters for SPAC Acquiror, the Company or the Sponsorany of their respective Affiliates. All communication between or among Prior SPAC CounselAcquiror and Merger Sub, on behalf of themselves and the one handother Waiving Parties, hereby consent to and waive (and will not assert) any conflict of interest or any claim or objection arising therefrom or relating thereto.
(b) Acquiror and Xxxxxx Sub further agrees that all communications among Xxxxx Day, the Company, the Company Equityholder and the Represented Entities that relate in any way to the Representation (including all of the client files and records in the possession of Xxxxx Day related thereto) constitute attorney-client privileged communications between the Represented Entities and Xxxxx Day (collectively, the “Privileged Deal Communications”), and the Surviving Corporation or the Sponsor, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the SponsorRepresented Entities, shall may be controlled by the Sponsor Represented Entities and shall not pass to or be claimed by any Xxxxxxx Party Acquiror, the Company or the Surviving Corporation following Company. All Privilege Rights shall survive the Closing and remain in full force and effect thereafter. Effective as of the Closing. Notwithstanding , all Privilege Rights are hereby assigned by the foregoingCompany to, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement and shall remain the privileged communications or information of such Xxxxxxx Company following be controlled, from and after the Closing.
(b) Each of , exclusively by, the Xxxxxxx Parties further agreesRepresented Entities. From and after the Closing, Acquiror and the Surviving Company, on behalf of itself and its Affiliatesthe Waiving Parties, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor waives and shall not pass to or be claimed by assert any Xxxxxxx Company or the Surviving Corporation after the Closing. All SPAC Deal Communications that are attorney-client privileged (privilege with respect to 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute Dispute arises between any Xxxxxxx Company Acquiror or the Surviving Corporation, on the one hand, Company and a third party other than party, Acquiror or the Sponsor, on the other hand, the Sponsor Surviving Company may assert confidentiality protection or the attorney-client privilege with respect to the Privileged Deal Communications to prevent the disclosure of the Privileged SPAC Deal Communications to such third partythereof; provided, and no Xxxxxxx Company nor however, that the Surviving Corporation Company may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorCompany Equityholder. In the event that Xxxxx Day shall not have any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the Sponsor shall hold such property rights, and Prior SPAC Counsel shall have no duty whatsoever to reveal or disclose any such of the Privileged Deal Communications or files or other materials to any of Acquiror, the Surviving Company or any Privileged SPAC Deal Communications of the Waiving Parties by reason of any attorney-client relationship between Prior SPAC CounselXxxxx Day and the Company, on the one hand, and any Xxxxxxx Surviving Company or the Surviving Corporation 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 partyotherwise.
(e) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Welsbach Technology Metals Acquisition Corp.)
Conflicts and Privilege. (a) SPAC Purchaser and the Company agree and acknowledge that they shall not seek to cause Xxxxxxx Parties hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling Xxxxx Xxxxx Xxxxxxxx LLP (or any of its successors that represented SPAC current or former partners or employees) to reveal to the Sponsor Purchaser, the Company or any other person any information obtained in connection with such firm’s representation of the Company prior to the Closing (“Prior SPAC Counsel”)) may represent and protected by the Sponsor in such dispute even though the interests attorney-client privilege of the Sponsor may be directly adverse to those of the Surviving Corporation, and even though Company where such counsel may have represented SPAC information is being sought in a matter substantially related to such disputeanticipation of, or may be handling ongoing matters for SPAC in connection with, any dispute or potential dispute between the Sponsor. All communication between or among Prior SPAC CounselSeller, on the one hand, and the Surviving Corporation or Purchaser and the Sponsor, Company on the other handother, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsorincluding, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoingwithout limitation, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date dispute arising out of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned absent a written authorization signed by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the ClosingSeller. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing Purchaser and the privilege Company each acknowledge and agree that Seller will be entitled to retain the expectation services 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 any Xxxxxxx Company or the Surviving Corporation after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of Xxxxx Boult Xxxxxxxx LLP as 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, attorneys in the event that a of any dispute arises between any Xxxxxxx Company Purchaser or the Surviving CorporationCompany, on the one hand, and a third party Seller or its affiliates (other than the SponsorCompany), on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure concerning this Agreement or any of the Privileged SPAC Deal Communications to transactions contemplated herein or otherwise involving the Company, notwithstanding such third party, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Counselfirm’s prior representation of the Company, and the Purchaser and the Seller each hereby waive any conflict of interest presented by such representation. Purchaser, the Company and Seller agree that there existed prior to the Closing a common interest between the Company and Seller, which common interest will continue subsequent to the Closing, in the files generated and maintained by Xxxxxxx Companies and (ii) Prior Company CounselXxxxx Boult Xxxxxxxx LLP in connection with such firm’s representation of the Company prior to the Closing. Accordingly, the Purchaser and the Company agree that subsequent to the Closing Date the Seller may have access to such files, and may consult with the partners and employees and former partners and employees of Xxxxxxx Xxxxx Boult Xxxxxxxx LLP having knowledge of such files and the related matters with respect to such files and such matters without in any member way waiving any attorney-client communication, attorney work-product, or any other privileges. Seller hereby waives any conflicts of interest which may be presented by Xxxxxxx Xxxxx Boult Xxxxxxxx LLP’s representation of the Xxxxxxx Companies (collectively, Company after the “Closing Date with respect to matters for which such firm was providing representation to the Company Advised Parties”) prior to and after the ClosingClosing Date.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the SPAC and/or Sponsor, on the one hand, and any Xxxxxxx the Company, PubCo, Merger Sub 1, Merger Sub 2, on the other hand, that Shearman Loeb & Sterling Loeb LLP (or any of its successors successors) that represented SPAC or the and/or Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of the Surviving CorporationSPAC, 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 or the and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation SPAC or the 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 any Xxxxxxx Party Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx the Company following the Closing.
(b) Each of the Xxxxxxx Parties The Company further agrees, on behalf of itself and its Affiliates, thatand, after the Closing, on behalf of SPAC, PubCo and the Caravelle Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company SPAC, PubCo or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company SPAC, PubCo or the Surviving Corporation 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 any Xxxxxxx Company SPAC, PubCo or the Surviving CorporationCaravelle Companies, on the one hand, and a third party other than the 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, and no Xxxxxxx Company however, that neither SPAC nor the Surviving Corporation Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSurviving Corporation. In the event that any Xxxxxxx Company SPAC, PubCo or the Surviving Corporation 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, shall as promptly as practicable (and, in any event, within two (2) Business Days Days) after becoming aware thereof) thereof notify the Sponsor in writing (including by making specific reference to this Section 12.1811.18) so that the Sponsor can seek a protective order; providedorder and SPAC, further, that the Xxxxxxx Companies PubCo and the Surviving Corporation 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 the Sponsor shall hold such property rights, 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 Xxxxxxx Company or the Surviving Corporation Caravelle Companies after the Closing, on the other hand, 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) Xxxxxxx agrees, The Company agrees on behalf of itself and each of the Xxxxxxx Companies SPAC, PubCo and the Surviving Corporation Caravelle Companies after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company SPAC or, after the Closing Closing, PubCo or the Caravelle Companies receives or takes physical possession of any SPAC Deal Communications, (Aa) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person Person, of the privileges or protections described in this Section 12.1811.18, and (Bb) none of the Xxxxxxx Companies neither SPAC, PubCo nor the Surviving Corporation Caravelle Companies after the Closing shall assert any claim that the 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 the Surviving Corporation SPAC, PubCo or any Xxxxxxx Caravelle Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Surviving Corporation or any Xxxxxxx Company 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 parties hereto acknowledges and agrees that Dechert LLP Xxx Xx Law Offices LLC (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies Company in various matters involving a range of issues and as counsel to the Xxxxxxx Companies Company in connection with the negotiation, preparation, execution, authorization or performance negotiation of this Agreement and Agreement, the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies Company and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Caravelle Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
(g) SPAC further agrees that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Caravelle Companies, or PubCo or the Acquisition Entities or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised Parties, shall be controlled by Surviving Corporation on behalf of the Caravelle Companies and shall not pass to or be claimed by SPAC. All Company Deal Communications that are attorney-client privileged (the “Privileged Company Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Surviving Corporation and the Company, shall be controlled by Surviving Corporation on behalf of the Company and shall not pass to or be claimed by SPAC; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between SPAC or the Caravelle Companies, PubCo or the Acquisition Entities, on the one hand, and a third party other than Sponsor, on the other hand, SPAC or the Caravelle Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications to such third party; provided, however, that neither SPAC nor the Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the event that SPAC or the Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Company Deal Communications, SPAC shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Surviving Corporation in writing (including by making specific reference to this Section 11.8) so that Surviving Corporation can seek a protective order and SPAC agrees to use all commercially reasonable efforts to assist therewith.
(i) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only Surviving Corporation and the Company Advised Parties shall hold such property rights and Prior Company Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Company Deal Communications by reason of any attorney-client relationship between Prior Company Counsel, on the one hand, and the Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(j) SPAC agrees (i) to the extent that SPAC receives or takes physical possession of any Company Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties or any other Person, of the privileges or protections described in this Section 11.18, and (b) SPAC shall not assert any claim that any of the Company Advised Parties or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the attorney-client or other privilege, or by otherwise asserting that SPAC has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each of the Parties that the Company has retained White & Case LLP (a“W&C”) SPAC to act as its counsel in connection with the transactions contemplated hereby and that W&C has not acted as counsel for any other Party in connection with the Xxxxxxx transactions contemplated hereby and that none of the other Parties has the status of a client of W&C for conflict of interest or any other purposes as a result thereof. Parent and Merger Sub hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between Parent or among the Surviving Corporation or the SponsorCorporation, on the one hand, and any Xxxxxxx Company, on former Equity Holder of the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC Company or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) Stockholders’ Representative, W&C may represent any such former Equity Holder or the Sponsor Stockholders’ Representative, as applicable, in such dispute even though the interests of such former Equity Holder or the Sponsor Stockholders’ Representative, as applicable, may be directly adverse to those of Parent, the Surviving CorporationCorporation or its Subsidiaries, and even though such counsel W&C may have represented SPAC the Company or the Company Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the Sponsor. All communication between or among Prior SPAC CounselParent, on the one hand, and the Surviving Corporation or its Subsidiaries. Parent and Merger Sub further agree that, as to all communications among W&C, the SponsorCompany, on the other handCompany Subsidiaries, shall remain privileged after the Closing 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 relating thereto shall belong solely belongs to the SponsorCompany and, shall from and after the Effective Time, the former Equity Holders of the Company, and may be controlled only by the Sponsor them and shall not pass to or be claimed by any Xxxxxxx Party or Parent, the Surviving Corporation following the Closingor its Subsidiaries. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or Parent, the Surviving CorporationCorporation or its Subsidiaries, on the one hand, and a third party other than a Party to this Agreement after the SponsorClosing, on the other hand, the Sponsor Surviving Corporation and its Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by W&C to such third party; provided, and no Xxxxxxx Company nor however, that neither the Surviving Corporation nor its Subsidiaries may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithStockholders’ Representative.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the SPAC and/or Sponsor, on the one hand, and any Xxxxxxx the Company, PubCo, Merger Sub 1, Merger Sub 2, on the other hand, that Shearman any legal counsel (including Xxxxxx Xxxxxxx & Sterling Xxxx LLP (or any of its successors and Ellenoff Xxxxxxxx & Schole LLP) that represented SPAC or the and/or Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of the Surviving CorporationSPAC, 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 or the and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation SPAC or the 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 any Xxxxxxx Party Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx the Company following the Closing.
(b) Each of the Xxxxxxx Parties The Company further agrees, on behalf of itself and its Affiliates, thatand, after the Closing, on behalf of SPAC, 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, preparation, execution, authorization or performance of this Agreement documentation and 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company SPAC, PubCo or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company SPAC, PubCo or the Surviving Corporation 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 any Xxxxxxx Company SPAC, PubCo or the Surviving CorporationNettar Companies, on the one hand, and a third party other than the 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, and no Xxxxxxx Company however, that neither SPAC nor the Surviving Corporation Nettar Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSurviving Corporation. In the event that any Xxxxxxx Company SPAC, PubCo or the Surviving Corporation 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, shall as promptly as practicable (and, in any event, within two (2) Business Days Days) after becoming aware thereof) thereof notify the Sponsor in writing (including by making specific reference to this Section 12.1811.18) so that the Sponsor can seek a protective order; providedorder and SPAC, further, that the Xxxxxxx Companies PubCo and the Surviving Corporation 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 the Sponsor shall hold such property rights, 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 Xxxxxxx Company or the Surviving Corporation Nettar Companies after the Closing, on the other hand, 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) Xxxxxxx agrees, The Company agrees on behalf of itself and each of the Xxxxxxx Companies SPAC, PubCo and the Surviving Corporation Nettar Companies after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company SPAC or, after the Closing Closing, PubCo or the Nettar Companies receives or takes physical possession of any SPAC Deal Communications, (Aa) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person Person, of the privileges or protections described in this Section 12.1811.18, and (Bb) none of the Xxxxxxx Companies neither SPAC, PubCo nor the Surviving Corporation Nettar Companies after the Closing shall assert any claim that the 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 the Surviving Corporation SPAC, PubCo or any Xxxxxxx Nettar Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Surviving Corporation or any Xxxxxxx Company Nettar 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 parties hereto acknowledges and agrees that Dechert Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP and Xxxxxxxxx Traurig LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies Company in various matters involving a range of issues and as counsel to the Xxxxxxx Companies Company in connection with the negotiation, preparation, execution, authorization or performance negotiation of this Agreement and Agreement, the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies Company and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Nettar Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC PubCo and the BT Entities hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among PubCo and/or Sponsor, on the one hand, and BT Assets and/or the BT Companies, on the other hand, any legal counsel (including Xxxxxx & Xxxxxxx Parties LLP) that represented PubCo and/or Sponsor prior to the Closing may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to PubCo, and even though such counsel may have represented PubCo in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo and/or Sponsor. Notwithstanding the foregoing, any privileged communications or information shared by BT Assets or the BT Companies prior to the Closing with PubCo or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of BT Assets and/or the BT Companies following the Closing.
(b) PubCo and the BT Entities hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the SponsorBT Designated Directors and/or BT Assets, on the one hand, and any Xxxxxxx Companythe BT Companies and/or PubCo, on the other hand, that Shearman any legal counsel (including Xxxxxx & Sterling LLP (or any of its successors Xxxxxxx LLP) that represented SPAC or the Sponsor BT Designated Directors and/or BT Assets prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor BT Designated Directors and/or BT Assets in such dispute even though the interests of the Sponsor BT Designated Directors and/or BT Assets may be directly adverse to those of PubCo and/or the Surviving CorporationBT Companies, and even though such counsel may have represented SPAC PubCo and/or the BT Companies in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or PubCo, the SponsorBT Companies, the BT Designated Directors and/or BT Assets. All communication PubCo and the BT Companies further agree that, as to all legally privileged communications prior to the Closing between or among Prior SPAC Counselany legal counsel (including Xxxxxx & Xxxxxxx LLP) that represented BT Assets, on the one hand, and BT Designated Directors and/or the Surviving Corporation or the Sponsor, on the other hand, shall remain privileged after BT Companies prior to the Closing and any one or more such Persons that relate in any way to the Transactions, the attorney/client privilege and the expectation of client confidence relating thereto shall belong solely belongs to BT Assets and/or the Sponsor, shall BT Designated Directors and may be controlled by the Sponsor BT Assets and/or such BT Designated Directors, and shall not pass to or be claimed or controlled by any Xxxxxxx Party PubCo (after giving effect to the Closing) or the Surviving Corporation following BT Companies; provided that BT Assets and/or the ClosingBT Designated Directors shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company PubCo prior to the Closing with SPAC BT Assets or the Sponsor BT Designated Directors (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company the BT Companies following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Transaction Agreement (GSR II Meteora Acquisition Corp.)
Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties Acquisition Entities hereby agree thaton behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that Xxxxxxxxx Xxxxxxxx LLP (“Xxxxxxxxx”) and Xxxxxxxxx Xxxx Xxxxxxx Carmel LLP (“SRFC”) 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 the event a dispute each case, solely in connection with respect any Action or obligation arising out of or relating to this Agreement Agreement, any Ancillary Document or the Transactions arises after contemplated hereby or thereby, notwithstanding its prior representation of the Closing 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 Xxxxxxxxx or SRFC 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 among any member of the Surviving Corporation or the SponsorCompany Counsel WP Group, on the one hand, and any Xxxxxxx Companyeach of Xxxxxxxxx and SRFC, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor made prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization delivery and performance under, or performance any dispute or Action arising out of or relating to, this Agreement 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 Ancillary Agreements 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 consummation Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions. In connection with any matter .
(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 Xxxxx Xxxxxxx LLP (“Xxxxx Xxxxxxx”) and Fasken Xxxxxxxxx XxXxxxxx LLP (“Fasken”) may represent the shareholders or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict holders of interest arising from or in connection with (i) Prior Company Counsel’s prior representation other equity interests of the Xxxxxxx Companies and (ii) Prior Company Counsel’s representation Sponsor or of SPAC or any member of the Xxxxxxx Companies their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Company Advised 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 Xxxxx Xxxxxxx’x or Xxxxxx’s 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 Xxxxx Xxxxxxx and Fasken, 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
Samples: Business Combination Agreement (Arogo Capital Acquisition Corp.)
Conflicts and Privilege. (a) SPAC and the Recognizing that Xxxx Xxxxx & Xxxxxxx Parties hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of “Xxxx Xxxxx”) has acted as legal counsel to Seller and its successors that represented SPAC or Affiliates (including the Sponsor Acquired Companies) prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of the Surviving CorporationClosing, and even though such that Xxxx Xxxxx intends to act as legal counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself Seller and its Affiliates, that, Affiliates (which will no longer include the Acquired Companies) after the Closing, each of Buyer and the Acquired Companies hereby waives, on its own behalf, any conflicts that may arise in connection with Xxxx Xxxxx representing Seller and/or its Affiliates after the Closing as such representation may relate to any Acquired Company or the Transactions. In addition, all communications in any form or format whatsoever involving attorney-client confidences between or among any of Prior SPAC CounselSeller, SPAC or the Sponsor, its Affiliates or any Acquired Company and Xxxx Xxxxx in the course of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and 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 Privileged Communications”) shall be deemed to be retained attorney-client confidences that belong solely to Seller and owned by its Affiliates (and not the SponsorAcquired Companies). Accordingly, the Acquired Companies shall be controlled by not, without Seller’s consent, have access to any Privileged Communications, or to the Sponsor files of Xxxx Xxxxx relating to its engagement, whether or not the Closing shall have occurred. Without limiting the generality of the foregoing, upon and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the Closing. All SPAC Deal Communications that are , (i) Seller and its Affiliates shall be the sole holders of the attorney-client privileged privilege with respect to the Privileged Communications and the related engagement, and none of the Acquired Companies shall be a holder thereof, (ii) to the “Privileged SPAC Deal Communications”extent that files of Xxxx Xxxxx in respect of such engagement constitute property of the client, only Seller and its Affiliates (and not the Acquired Companies) shall remain privileged after the Closing hold such property rights and the privilege and the expectation of client confidence relating thereto (iii) Xxxx Xxxxx shall belong solely have no duty whatsoever to the Sponsor, shall be controlled by the Sponsor and shall not pass reveal or disclose any such Privileged Communications or files to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates the Acquired Companies by reason of any applicable privileges attorney-client relationship between Xxxx Xxxxx and any of the Acquired Companies or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) otherwise. Notwithstanding the foregoing, in the event that a dispute arises between Buyer and any Xxxxxxx Company or of the Surviving CorporationAcquired Companies, on the one hand, and a third party Person other than the Sponsora party to this Agreement, on the other hand, after the Sponsor 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 may assert the attorney-client privilege to prevent the disclosure to such Third Party of the Privileged SPAC Deal Communications to such third partyCommunications; provided, and no Xxxxxxx Company nor however, that the Surviving Corporation Acquired Companies may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSeller (which consent shall not be unreasonably withheld, conditioned or delayed). In the event that Buyer or any Xxxxxxx Company or of the Surviving Corporation is Acquired Companies are legally required or requested by Governmental Order governmental order or otherwise (any such request or order, a “Legal Request”) to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo 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, as 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 as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor Seller in writing (including prior to the disclosure by making specific reference Buyer of any Privileged Communications to this Section 12.18the extent practicable) so that the Sponsor can Seller may attempt to seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree Xxxxx agrees to use all commercially reasonable efforts (at the sole cost and expense of Seller) to assist therewith.
. Xxxx Xxxxx is intended to be an express third-party beneficiary of this Section 12.22 (d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property including all definitions of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described defined terms used in this Section 12.18, 12.22) and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 partymay specifically enforce its terms.
(f) Each of the Parties acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Apogee Enterprises, Inc.)
Conflicts and Privilege. Buyer, on behalf of 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 by Xxxxx & Xxxxxxx LLP, Xxxxx & Xxxxxxx LLP shall be allowed to represent the Member and each of its Affiliates in any matters and disputes adverse to Buyer and/or the Company that 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) hereby (a) SPAC waives any claim that Buyer or the Company has or may have that Xxxxx & Lardner LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and the Xxxxxxx Parties hereby agree (b) agrees that, in the event if a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation Buyer or the Sponsor, on Company and the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (Member or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) their Affiliates, then Xxxxx & Xxxxxxx LLP may represent the Sponsor Member or such Affiliate in such dispute even though the interests of the Sponsor Member or such Affiliate may be directly adverse to those of Buyer and/or the Surviving Corporation, Company and even though such counsel Xxxxx & Lardner LLP may have represented SPAC the Company in a matter substantially related to such dispute. Buyer, or may on behalf of itself and its Affiliates (which, for this purpose, shall be handling ongoing matters for SPAC or deemed to include the Sponsor. All communication Company), also agrees that, as to all attorney-client work product communications between or among Prior SPAC Counsel, on the one hand, Xxxxx & Xxxxxxx LLP and the Surviving Corporation or Member, the SponsorCompany and/or any of their respective Affiliates that relate solely to the transactions contemplated by this Agreement, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Member and may be controlled by the Sponsor Member and shall not pass to or be claimed by any Xxxxxxx Party Buyer or the Surviving Corporation following the ClosingCompany. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Company Buyer or the Surviving Corporation, on the one hand, Company and a third party other than the SponsorMember or an Affiliate of the Member after the Closing, on then the other hand, Company (to the Sponsor extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications by Xxxxx & Lardner LLP; provided, and no Xxxxxxx however, that the Company nor the Surviving Corporation may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorMember. In For clarification, as of Closing, unless specifically retained as to a matter, Xxxxx & Xxxxxxx LLP shall no longer represent the event that any Xxxxxxx Company or and shall comply with the Surviving Corporation is legally required by Governmental Order to access or obtain a copy terms of all or a portion Section 5.5 for the benefit of the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies Company and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithBuyer.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. Recognizing that Xxxx Xxxxx LLP (“Seller Counsel”) has been engaged by the Seller and its Affiliates to represent the Seller in connection with the transactions contemplated hereunder, each Purchaser hereby (a) SPAC waives, on its own behalf and the Xxxxxxx Parties hereby agree thatagrees to cause its Affiliates to waive, in the event a dispute with respect to this Agreement or the Transactions arises any conflicts that may arise after the Closing between the Purchaser or among the Surviving Corporation or the Sponsorany of its Affiliates, on the one hand, and the Seller or any Xxxxxxx Companyof its Affiliates, on the other hand, and (b) agrees that Shearman & Sterling LLP (Seller Counsel may represent the Seller or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor Affiliates in such dispute even though the interests interest of the Sponsor Seller may be directly adverse to those the Purchaser or any of the Surviving Corporationits Affiliates, and even though such counsel Seller Counsel may have represented SPAC the Purchaser or any of its Affiliates in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC 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 Sponsor. All communication between Seller or among Prior SPAC Counselany of their respective directors, on the one handmanagers, and the Surviving Corporation members, partners, officers or employees or Affiliates that relate in any way to this Agreement or the Sponsortransactions contemplated hereunder, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, Seller and shall be controlled solely by the Sponsor Seller and shall not pass to or be claimed by either Purchaser or any Xxxxxxx Party of its Affiliates. Accordingly, the Purchasers shall not have access to any such communications, or to the Surviving Corporation following files of Seller Counsel relating to its engagement, whether or not the ClosingClosing shall have occurred. Notwithstanding the foregoingthose efforts, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agreeseach Purchaser, on its behalf and on behalf of itself and its Affiliates, that, after the Closing, 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 further understands and agrees that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements or the consummation of the Transactions ortransactions contemplated hereunder may result in the inadvertent disclosure of such information that may be confidential or subject to a claim of privilege. Each Purchaser, beginning on the date its behalf and on behalf of this Agreementits Affiliates, further understands and agrees that any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall disclosure of such information that may be deemed confidential or subject to be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall a claim of privilege will not pass to prejudice or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the Closing; provided, further, that nothing contained herein shall be deemed to be otherwise constitute a waiver by the Sponsor or of any claim of privilege. Each Purchaser, on its behalf and on behalf 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 foregoingAffiliates, in the event that a dispute arises between any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree agrees to use all commercially reasonable efforts to assist therewith.
(d) To return promptly any such inadvertently disclosed information to the extent that files or other materials maintained by Prior SPAC Counsel constitute property appropriate Person upon becoming aware of its clients, only the Sponsor shall hold such property rightsexistence. Each Purchaser agrees to take, 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 Counselcause its Affiliates to take, on all steps necessary to implement the one hand, and any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance intent of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the ClosingSection.
Appears in 1 contract
Conflicts and Privilege. Buyers and Seller agree that, notwithstanding any current or prior representation of Seller or its Affiliates by Xxxxxx Xxxxx 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 disputes, including in any matter or dispute adverse to Buyers and their Affiliates (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) SPAC waive any claim they have or may have that TE has a conflict of interest or is otherwise prohibited from engaging in such representation and the Xxxxxxx Parties hereby (b) agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyers or among the Surviving Corporation or the Sponsor, any of their Affiliates (on the one hand, ) and Seller or any Xxxxxxx Company, of its Affiliates (on the other hand), that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) TE may represent the Sponsor Seller or such Affiliate in such dispute even though the interests of the Sponsor Seller or such Affiliate may be directly adverse to those of Buyers or their Affiliates (including the Surviving Corporation, Transferred Company) and even though such counsel TE may have represented SPAC the Transferred Company in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Buyers or the SponsorTransferred Company. All communication between or among Prior SPAC Counsel, on the one handBuyers further agree, and the Surviving Corporation or the Sponsoragrees to cause their Affiliates (including, on the other hand, shall remain privileged after the Closing Closing, the Transferred Company) to agree, that, as to all communications among TE and Seller and its Affiliates (including, prior to the Closing, the Transferred Company) that relate in any way to the Transaction contemplated by this Agreement, the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsorbelongs to, shall and may be controlled by the Sponsor by, Seller and shall will not pass to or be claimed by any Xxxxxxx Party Buyers or their Affiliates (including, after the Surviving Corporation following 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 after the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Company Parent or their Affiliates (including Holdings or the Surviving Corporation, on the one hand, Transferred Company) and a third party other than a Party to this Agreement after the Sponsor, on the other handClosing, the Sponsor Transferred Company may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by TE to such third party; provided, and no Xxxxxxx however, that the Transferred Company nor the Surviving Corporation may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSeller. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy This Section 7.11 will be irrevocable, and no term of all or a portion of the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that 7.11 may be amended, waived or modified, without the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithprior written consent of TE.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. Parent, on behalf of itself and its Affiliates (a) SPAC which, for this purpose, shall be deemed to include Holdings and the Xxxxxxx Parties hereby agree Company) agrees that, notwithstanding any current or prior representation of Holdings and the Company by Xxxxxxxx Xxxxx LLP, such firm shall be allowed to represent any Stockholder (and the Stockholders’ Representative), Option Holder, or Person listed on Schedule 5.04(a) or 5.04(b) in any matters and disputes adverse to Parent, Holdings and/or the event a dispute with respect Company that relate to this Agreement or the Transactions other Acquisition Documents or the transactions contemplated hereby or thereby. Parent, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include Holdings and the Company) hereby (a) waives any claim that Parent, Holdings or the Company has or may have that Xxxxxxxx Xxxxx 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 or among the Surviving Corporation that relates to this Agreement or the Sponsorother Acquisition Documents or the transactions contemplated hereby or thereby between Parent, Holdings or the Company, on the one hand, and any Xxxxxxx CompanyStockholder (or the Stockholders’ Representative) or other Person, on the other hand, that Shearman & Sterling then Xxxxxxxx Xxxxx LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent such Stockholder (and the Sponsor Stockholders’ Representative) or other Person in such dispute even though the interests of the Sponsor one or more of such Persons may be directly adverse to those of Parent, Holdings or the Surviving Corporation, Company and even though such counsel Xxxxxxxx Xxxxx LLP may have represented SPAC Holdings or the Company in a matter substantially related to such dispute, dispute or may be handling ongoing matters for SPAC Parent, Holdings or the SponsorCompany. All communication Parent, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include Holdings and the Company), also agrees that, as to all communications between or among Prior SPAC CounselXxxxxxxx Xxxxx LLP and the Stockholders, the Option Holders, the Stockholders’ Representative, the Persons listed on Schedules 5.04(a) and 5.04(b), Holdings and the one handCompany (with respect to Holdings and the Company, solely prior to the Effective Time) and/or any of their respective Affiliates that (i) primarily relate to or were otherwise in anticipation of the transactions contemplated by this Agreement or any other Acquisition Document, and (ii) do not include advice (other than with respect to or in anticipation of the Surviving Corporation transactions contemplated by this Agreement or any other Acquisition Document) regarding the Sponsorbusiness, on the other handoperations, shall remain privileged after the Closing 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 Holdings and the Company, the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Stockholders and the Stockholders’ Representative and may be controlled by the Sponsor Stockholders’ Representative and shall not pass to or be claimed by any Xxxxxxx Party Parent, Holdings or the Surviving Corporation following the ClosingCompany. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Company Parent, Holdings or the Surviving CorporationCompany, on the one hand, and a third party other than (and unaffiliated with) any Stockholder, Option Holder, the SponsorStockholders’ Representative, or a Person listed on Schedule 5.04(a) or 5.04(b) on the other hand, after the Sponsor Closing, then Holdings and the Company (to the extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications by Xxxxxxxx Xxxxx LLP; provided, and no Xxxxxxx however, that none of Parent, Holdings or the Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company Stockholders’ Representative, which consent shall not be unreasonably withheld, delayed or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithconditioned.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Gallagher Arthur J & Co)
Conflicts and Privilege. Parent, on behalf of itself, the Surviving Company and the Operating Company and its respective Affiliates (together, a “Parent Party”), agrees that, notwithstanding any current or prior representation of the Company by Xxxxx & Xxxxxxx LLP (“Xxxxx”), Xxxxx shall be allowed to represent the Stockholder Representative and its Affiliates in any matters and disputes adverse to the Parent Party that either is existing on the date hereof or arises in the future and relates to this Agreement and the transactions contemplated hereby. Parent, on behalf of itself and each Parent Party, hereby (a) SPAC waives any claim that any Parent Party has or may have that Xxxxx has a conflict of interest or is otherwise prohibited from engaging in such representation and the Xxxxxxx Parties hereby agree (b) agrees that, in the event if a dispute with respect to this Agreement or the Transactions arises after the Closing between or among a Parent Party and the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (Stockholder Representative or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) Affiliates, then Xxxxx may represent the Sponsor Stockholder Representative or any of its Affiliates in such dispute dispute, even though the interests of the Sponsor Stockholder Representative or any of its Affiliates may be directly adverse to those of the Surviving Corporation, Parent Party and even though such counsel Xxxxx may have represented SPAC the Company in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the SponsorParent Party. All communication Parent, on behalf of itself and each Parent Party, also agrees that, as to all communications between or among Prior SPAC CounselXxxxx and a Company Holder, on the one handStockholder Representative, and the Surviving Corporation or Company, and/or any of its respective Affiliates that relate in any way to the Sponsortransactions contemplated hereby, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the SponsorCompany Holders and the Stockholder Representative, shall may not be controlled by the Sponsor any Parent Party and shall not pass to or be claimed by any Xxxxxxx the Parent Party or the Surviving Corporation following the ClosingCompany. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Company or the Surviving Corporation, on the one hand, a Parent Party and a third party other than the SponsorStockholder Representative or an Affiliate of the Stockholder Representative after the Closing, on then the other hand, Parent Party (to the Sponsor extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications by Xxxxx; provided, and no Xxxxxxx Company nor however, that the Surviving Corporation Parent Party may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithStockholder Representative.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. Each of the Parties hereto acknowledges and agrees that Xxxxxxx Procter LLP (a“Xxxxxxx”) SPAC has acted as counsel to the Company Entities, their Subsidiaries and the 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, Xxxxxxx Parties hereby agree thatrepresenting the Seller after the Closing, in the event a dispute including with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor disputes in such dispute even though which the interests of the Sponsor Seller may be directly adverse to those of the Surviving Corporation, Purchaser 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 or its Affiliates (including the SponsorCompany Entities and their Subsidiaries). All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties The Purchaser further agrees, on behalf of itself and its Affiliates, thatand, after the Closing, on behalf of the Company Entities and their Subsidiaries, that all communications in any form or format whatsoever between or among any of Prior SPAC CounselXxxxxxx, SPAC or the SponsorSeller, the Company Entities and/or any of their Subsidiaries, or any of their respective Representatives directors, officers, employees or other representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Transaction (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned by the SponsorSeller, shall be controlled by the Sponsor Seller, and shall not pass to or be claimed by the Purchaser, the Company Entities or any Xxxxxxx Company or the Surviving Corporation after the Closingof their Subsidiaries. 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 the SponsorSeller, shall be controlled by the Sponsor Seller and shall not pass to or be claimed by any Xxxxxxx Purchaser, the Company or the Surviving Corporation after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor Entities 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) their Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Purchaser, any Xxxxxxx Company Entity or the Surviving Corporationa Subsidiary, on the one hand, and a third party other than the SponsorSeller, on the other hand, the Sponsor Purchaser, the Company Entities or the Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such - 52 - third party; provided, and no Xxxxxxx however, that none of the Purchaser, the Company nor the Surviving Corporation Entities or any Subsidiary may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSeller. In the event that the Purchaser, any Xxxxxxx Company Entity or the Surviving Corporation any of their Subsidiaries 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 the Purchaser shall promptly as practicable (and, in any event, within two five (5) Business Days after becoming aware thereofDays) notify the Sponsor Seller in writing (including by making specific reference to this Section 12.18Section) so that the Sponsor Seller can seek a protective order; provided, further, that the Xxxxxxx Companies order and the Surviving Corporation agree Purchaser agrees to use all commercially reasonable efforts (at the sole expense of Seller) to assist therewith.
(d) . To the extent that files or other materials maintained by Prior SPAC Counsel Xxxxxxx constitute property of its clients, only the Sponsor Seller shall hold such property rights, rights and Prior SPAC Counsel Xxxxxxx 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 CounselXxxxxxx, on the one hand, and any Xxxxxxx Company Entity or the Surviving Corporation after the Closingits Subsidiaries, on the other hand. The Purchaser agrees that it will not, 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) Xxxxxxx agrees, on behalf of itself and each of that it will cause the Xxxxxxx Companies Company Entities and the Surviving Corporation after the Closingtheir Subsidiaries not to, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 intentionally access or use the SPAC Privileged Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Surviving Corporation or any Xxxxxxx Company Seller waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation Purchaser, any Company Entity or any Xxxxxxx of the Company after the Closing Entities’ Subsidiaries has the right to waive the attorney-client or other privilege and or (iiiii) not to seek to obtain the SPAC Privileged Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would Xxxxxxx. Notwithstanding the foregoing, Purchaser shall not 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance 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 information relating to the Company Entities and its Subsidiaries belong to the Company Entities and the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under this AgreementSubsidiaries and, 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after following the Closing., Purchaser shall have full rights with respect thereto. [Signatures on Next Page]
Appears in 1 contract
Samples: Stock Purchase Agreement
Conflicts and Privilege. (a) SPAC and the Xxxxxxx Parties Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the SPAC and/or Sponsor, on the one hand, and any Xxxxxxx the Company, PubCo, Merger Sub 1, Merger Sub 2, on the other hand, that Shearman Loeb & Sterling Loeb LLP (or any of its successors successors) that represented SPAC or the and/or Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of the Surviving CorporationSPAC, 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 or the and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation SPAC or the 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 any Xxxxxxx Party Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx the Company following the Closing.
(b) Each of the Xxxxxxx Parties The Company further agrees, on behalf of itself and its Affiliates, thatand, after the Closing, on behalf of SPAC, PubCo and the Caravelle Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company SPAC, PubCo or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company SPAC, PubCo or the Surviving Corporation 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 any Xxxxxxx Company SPAC, PubCo or the Surviving CorporationCaravelle Companies, on the one hand, and a third party other than the 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, and no Xxxxxxx Company however, that neither SPAC nor the Surviving Corporation Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSurviving Corporation. In the event that any Xxxxxxx Company SPAC, PubCo or the Surviving Corporation 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, shall as promptly as practicable (and, in any event, within two (2) Business Days Days) after becoming aware thereof) thereof notify the Sponsor in writing (including by making specific reference to this Section 12.1811.18) so that the Sponsor can seek a protective order; providedorder and SPAC, further, that the Xxxxxxx Companies PubCo and the Surviving Corporation 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 the Sponsor shall hold such property rights, 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 Xxxxxxx Company or the Surviving Corporation Caravelle Companies after the Closing, on the other hand, 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) Xxxxxxx agrees, The Company agrees on behalf of itself and each of the Xxxxxxx Companies SPAC, PubCo and the Surviving Corporation Caravelle Companies after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company SPAC or, after the Closing Closing, PubCo or the Caravelle Companies receives or takes physical possession of any SPAC Deal Communications, (Aa) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person Person, of the privileges or protections described in this Section 12.1811.18, and (Bb) none of the Xxxxxxx Companies neither SPAC, PubCo nor the Surviving Corporation Caravelle Companies after the Closing shall assert any claim that the 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 the Surviving Corporation SPAC, PubCo or any Xxxxxxx Caravelle Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Surviving Corporation or any Xxxxxxx Company 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 parties hereto acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) Xxx Xx Law Offices LLC has acted as counsel to the Xxxxxxx Companies Company in various matters involving a range of issues and as counsel to the Xxxxxxx Companies Company in connection with the negotiationnegotiation of the Original Agreement, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation Transactions. In connection with any matter or dispute under this Agreement, and Xxxxx Xxxxxxx LLP (together with Xxx Xx Law Office LLC, “Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Xxxxxxx Companies Company and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Caravelle Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
(g) SPAC further agrees that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Caravelle Companies, or PubCo or the Acquisition Entities or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised Parties, shall be controlled by Surviving Corporation on behalf of the Caravelle Companies and shall not pass to or be claimed by SPAC. All Company Deal Communications that are attorney-client privileged (the “Privileged Company Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Surviving Corporation and the Company, shall be controlled by Surviving Corporation on behalf of the Company and shall not pass to or be claimed by SPAC; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between SPAC or the Caravelle Companies, PubCo or the Acquisition Entities, on the one hand, and a third party other than Sponsor, on the other hand, SPAC or the Caravelle Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications to such third party; provided, however, that neither SPAC nor the Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the event that SPAC or the Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Company Deal Communications, SPAC shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Surviving Corporation in writing (including by making specific reference to this Section 11.8) so that Surviving Corporation can seek a protective order and SPAC agrees to use all commercially reasonable efforts to assist therewith.
(i) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only Surviving Corporation and the Company Advised Parties shall hold such property rights and Prior Company Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Company Deal Communications by reason of any attorney-client relationship between Prior Company Counsel, on the one hand, and the Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(j) SPAC agrees (i) to the extent that SPAC receives or takes physical possession of any Company Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties or any other Person, of the privileges or protections described in this Section 11.18, and (b) SPAC shall not assert any claim that any of the Company Advised Parties or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the attorney-client or other privilege, or by otherwise asserting that SPAC has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pacifico Acquisition Corp.)
Conflicts and Privilege. Buyer, on behalf of 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 the Subsidiary by Xxxxx & Lardner LLP, Xxxxx & Xxxxxxx 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) SPAC waives any claim that Buyer, the Company or the Subsidiary has or may have that Xxxxx & Lardner LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and the Xxxxxxx Parties hereby agree (b) agrees that, in the event if a dispute with respect to this Agreement or the Transactions arises after the Closing between or among Buyer, the Surviving Corporation Company or the Sponsor, on the one hand, Subsidiary and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (Seller or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) Affiliates, then Xxxxx & Xxxxxxx LLP may represent the Sponsor Seller or such Affiliate in such dispute even though the interests of the Sponsor Seller or such Affiliate may be directly adverse to those of Buyer, the Surviving Corporation, Company and/or the Subsidiary and even though such counsel Xxxxx & Lardner LLP may have represented SPAC the Company and the Subsidiary in a matter substantially related to such dispute, dispute or may be handling ongoing matters for SPAC or Buyer, the SponsorCompany and/or the Subsidiary. All communication Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiary), also agrees that, as to all communications between or among Prior SPAC CounselXxxxx & Xxxxxxx LLP and Seller, on the one handCompany, the Subsidiary and/or any of their respective Affiliates that relate in any way to the transactions contemplated hereby and occur prior to the Surviving Corporation or Closing, the Sponsor, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Seller and may be controlled by the Sponsor Seller and shall not pass to or be claimed by any Xxxxxxx Party Buyer, the Company or the Surviving Corporation following the ClosingSubsidiary. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Buyer, the Company or the Surviving Corporation, on the one hand, Subsidiary and a third party other than Seller or an Affiliate of Seller after the SponsorClosing, on then the other hand, Company or the Sponsor Subsidiary (to the extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications by Xxxxx & Lardner LLP; provided, and no Xxxxxxx however, that the Company nor or the Surviving Corporation Subsidiary may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithSeller.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. (a) SPAC Buyer, Buyer Parent, the Companies and the Xxxxxxx Parties Subsidiaries hereby agree that, in the event a dispute arises under or in connection with respect to this Agreement or the Transactions arises after the Closing between or among Buyer, Buyer Parent, the Surviving Corporation Companies or the SponsorSubsidiaries, on the one hand, and any Xxxxxxx CompanySeller, on the other hand, that Shearman & Sterling Xxxxxxx Xxxxxxx Xxxxxx LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor Seller in such dispute even though the interests of the Sponsor Seller may be directly adverse to those of the Surviving CorporationCompanies or the Subsidiaries, and even though such counsel Xxxxxxx Xxxxxxx Xxxxxx LLP may have represented SPAC the Companies or the Subsidiaries in a matter substantially related to such the dispute, or may be handling ongoing matters for SPAC the Companies and the Subsidiaries. Buyer, Buyer Parent, the Companies, the Subsidiaries and Seller further agree that, as to all communications between Xxxxxxx Xxxxxxx Xxxxxx LLP, the Companies, the Subsidiaries and Seller that relate, both prior to or after the Sponsor. All communication between Closing, to (a) the transactions contemplated by this Agreement, including without limitation the negotiation, preparation, execution, delivery and closing under, or among Prior SPAC Counselany dispute arising under or in connection with this Agreement which, on immediately prior to the one handClosing, would be covered by the attorney-client privilege of Seller and its counsel, and (b) the Surviving Corporation or DFS Subpoena, the Sponsor, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Seller and may be controlled by the Sponsor Seller, and shall not pass to or be claimed or controlled by any Xxxxxxx Party the Companies or the Surviving Corporation following the Closing. Notwithstanding the foregoingSubsidiaries; provided, any privileged communications or information shared by any Xxxxxxx Company prior that Seller shall not waive such attorney-client privilege other than to the Closing extent appropriate in connection with SPAC the enforcement or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any defense of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization rights or performance of this Agreement and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of obligations existing under this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company Buyer, Buyer Parent, the Companies or the Surviving Corporation, on the one hand, Subsidiaries and a third party person other than Seller after the Sponsor, on the other handClosing, the Sponsor Companies or the Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by Xxxxxxx Xxxxxxx Xxxxxx LLP to such third party, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsorperson. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall, Other than as promptly as practicable (and, explicitly set forth in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so 12.12, the parties hereto acknowledge that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 privilege attaching as a result of legal counsel representing the one hand, and any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) Subsidiaries prior to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company after survive the Closing has the right and continue 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements Subsidiaries, and the consummation of the Transactions. In connection with any matter or dispute under this Agreementnot Seller, 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the Parties hereto that the Securityholder Representative and the Majority Stockholder Entity has retained Xxxxxxx Parties Procter LLP (“Xxxxxxx”) to act as their counsel and as 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 with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, any Purchaser Indemnified Party on the one hand, and any Xxxxxxx Company, the Securityholder Representative and/or the Majority Stockholder Entity on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior with respect to the Closing (“Prior SPAC Counsel”)) Transactions, Xxxxxxx may represent the Sponsor Securityholder Representative and the Majority Stockholder Entity in such dispute even though the interests of the Sponsor Securityholder Representative and the Majority Stockholder Entity may be directly adverse to those the Purchaser Indemnified Parties (including the Company and each of the Surviving Corporationits Subsidiaries), and even though such counsel Xxxxxxx may have represented SPAC the Company and/or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the SponsorCompany and/or its Subsidiaries. All communication between or among Prior SPAC Counsel, on The Purchaser and the one handCompany further agree, and agree to cause all of the Surviving Corporation or Company’s Subsidiaries to agree, that, as to all communications, in any form whatsoever, (x) among Xxxxxxx, the SponsorCompany, on the other handSubsidiaries of the Company, shall remain privileged the Securityholder Representative and/or any Seller before Closing that relate in any way to the Transactions and (y) Xxxxxxx, the Securityholder Representative and/or any Seller after Closing (collectively, (x) and (y), the Closing and “Communications”), the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Securityholder Representative and the Majority Stockholder Entity and may be controlled only by the Sponsor Securityholder Representative and the Majority Stockholder Entity and shall not pass to or be claimed by the Purchaser or any Xxxxxxx Purchaser Indemnified Party or (including the Surviving Corporation following Company and any Subsidiary of the ClosingCompany). Notwithstanding 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 privileged communications conflict of interest arising from or information shared by any Xxxxxxx in connection with (a) Xxxxxxx’x representation of the Company and/or the Company’s Subsidiaries prior to the Closing with SPAC or respect to the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
Transactions and (b) Each Xxxxxxx’x representation of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement Stockholder Representative and 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 Majority Stockholder Entity prior to be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel Xxxxxxx constitute property of its clientsclients that are or relate to Communications, only the Sponsor Stockholder Representative and the Majority Stockholder Entity shall hold such property rights, rights and Prior SPAC Counsel Xxxxxxx 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 CounselXxxxxxx, on the one hand, and any Xxxxxxx Purchaser, the Company or the Surviving Corporation after the ClosingCompany’s Subsidiaries, on the other hand. Purchaser agrees that it will not, 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) Xxxxxxx agrees, on behalf of itself and each of that it will cause the Xxxxxxx Companies Company and the Surviving Corporation after the ClosingCompany’s Subsidiaries not to, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation Securityholder Representative or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.Majority
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Company, Company Sub, Gulliver Media and the Xxxxxxx Parties hereby SNI acknowledge and agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between any or among all of SNI, Gulliver Media, Company, Company Sub, the Surviving Corporation Travel Channel Entities or the Sponsorany of their respective Affiliates, on the one hand, and any Xxxxxxx CompanyCox TMI and its Affiliates, on the other hand, that Shearman & Sterling LLP (Dow Xxxxxx PLLC may represent any or all of Cox TMI and any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor Affiliates in such dispute even though the interests of the Sponsor Cox TMI and its Affiliates may be directly adverse to those SNI, Gulliver Media, Company, Company Sub, any of the Surviving CorporationTravel Channel Entities or their respective Affiliates, and even though such counsel Dow Xxxxxx PLLC may have represented SPAC any of SNI, Gulliver Media, Company, Company Sub, any Travel Channel Entity or any of their respective Affiliates in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC SNI, Gulliver Media, Company, Company Sub, any Travel Channel Entity or the Sponsorany of their respective Affiliates. All communication Company, Company Sub, Gulliver Media SNI and Cox TMI agree that, as to all communications between or among Prior SPAC CounselDow Xxxxxx PLLC, on the one hand, and the Surviving Corporation Cox TMI, Company, Company Sub, any Travel Channel Entity or the Sponsorany of their respective Affiliates, on the other hand, shall remain privileged after that relate to the Closing and Transactions, the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the SponsorCox TMI and its Affiliates (other than Company, shall be controlled by the Sponsor Company Sub, or any Travel Channel Entity), and shall not pass to or be claimed or controlled by any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoingSNI, Gulliver Media, Company, Company Sub, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, Travel Channel Entity or any of their respective Representatives that relate Affiliates in any way to the negotiation, preparation, execution, authorization or performance event of this Agreement and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any a legal dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or with any of Cox TMI or 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) Affiliates. Notwithstanding the foregoing, in the event that a dispute arises between SNI, Gulliver Media, Company, Company Sub, any Xxxxxxx Company Travel Channel Entity or the Surviving Corporationany of their respective Affiliates, on the one hand, and a third party Person other than the SponsorCox TMI or any of its Affiliates, on the other hand, after the Sponsor Closing, then SNI, Gulliver Media, Company, Company Sub, the applicable Travel Channel Entity or any of their respective Affiliates may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by Dow Xxxxxx PLLC to such third partyPerson; provided, and no Xxxxxxx however, that none of SNI, Gulliver Media, Company, Company nor the Surviving Corporation Sub, any Travel Channel Entity or any of their respective Affiliates may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company Cox TMI or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy applicable Affiliate of all or a portion of the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithCox TMI.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Contribution Agreement (Scripps Networks Interactive, Inc.)
Conflicts and Privilege. (a) SPAC Recognizing that K&L Gates LLP has acted as legal counsel to Signing Sellers and the Xxxxxxx Acquired Entities prior to and as of the date of this Agreement and 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 this Agreement, the Parties acknowledge that the Acquired Entities have waived, on their own behalf, and Purchaser hereby agree waives, any conflicts that may arise in connection with K&L Gates LLP’s representation of Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable) after the Closing. The Parties also acknowledge that the Acquired Entities have agreed, and Purchaser also agrees, that, in the event a dispute with respect as to this Agreement or the Transactions arises after the Closing between or all communications among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of 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 SPAC or the Sponsor. All communication between or among Prior SPAC CounselK&L Gates LLP, on the one hand, and the Surviving Corporation Acquired Entities (or any of them), the Signing Sellers (or any of them), or the SponsorAcquired Entities and Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), on the other hand, shall remain privileged after that relate in any way to this Agreement and to the Closing transactions under or related to this Agreement and are in fact subject to attorney-client privilege, the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely to the SponsorSigning Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), shall be owned and controlled by the Sponsor Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), and shall not pass to or be claimed by any Xxxxxxx Party Purchaser or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 Acquired Entities nor be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 partyAcquired Entities.
(c) Notwithstanding the foregoing, in the event that a dispute arises between any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Enviva Partners, LP)
Conflicts and Privilege. (a) SPAC Each of the parties hereto, on its own behalf and on behalf of its Related Persons (including, after the Acquisition Closing Date, the Surviving Subsidiary Corporation and the Xxxxxxx Parties Company Subsidiaries), hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Acquisition Closing Date between or among (x) the Sponsor, the equityholders of SPAC or the equityholders of the Sponsor and/or or any of their respective directors, members, partners, officers, employees or affiliates (other than SPAC, the Surviving Subsidiary Corporation or and the SponsorCompany Subsidiaries) (collectively, the “Sponsor Group”), on the one hand, and (y) SPAC, the Surviving Subsidiary Corporation, any Xxxxxxx CompanyCompany Subsidiary and/or any of their Related Persons, on the other hand, that Shearman any legal counsel, including XxXxxxxxx Will & Sterling Xxxxx LLP (or any of its successors “XxXxxxxxx”), that represented SPAC or and/or any member of the Sponsor Group prior to the Acquisition Closing (“Prior SPAC Counsel”)) Date may represent any member of the Sponsor Group in such dispute even though the interests of the Sponsor such persons may be directly adverse to those of SPAC, the Surviving Subsidiary Corporation, any Company Subsidiary and/or any of their Related Persons and even though such counsel may have represented SPAC and/or any member of the Sponsor Group in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC, the Surviving Subsidiary Corporation, any Company Subsidiary and/or any member of the Sponsor Group. SPAC or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and the Surviving Corporation or the 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 any Xxxxxxx Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agreesCompany, on behalf of itself their respective successors and its Affiliates, thatassigns and their Related Persons (including, after the ClosingAcquisition Closing Date, the Surviving Subsidiary Corporation and the Company Subsidiaries), further agree that, as to all legally privileged 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 prior to the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Acquisition Closing Date (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving Corporation, on the one hand, and a third party other than the 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, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order 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 Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies made in connection with the negotiation, preparation, execution, authorization delivery and performance under, or performance any dispute or Action arising out of this Agreement and the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under relating to, this Agreement, any Transaction Documents or the Transactions) between or among 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of and/or any member of the Xxxxxxx Companies Sponsor Group, on the one hand, and XxXxxxxxx, on the other hand, the attorney-client privilege and the expectation of client confidence shall survive the Acquisition Merger and belong to the Sponsor Group after the Acquisition Closing Date, and shall not pass to or be claimed or controlled by SPAC, the Surviving Subsidiary Corporation or any Company Subsidiary.
(b) Each of the parties hereto, on its own behalf and on behalf of its Related Persons (including, after the Acquisition Closing Date, the Surviving Subsidiary Corporation and the Company Subsidiaries), hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Acquisition Closing Date between or among (x) the equityholders of the Company and/or or any of their respective directors, members, partners, officers, employees or affiliates (other than the Surviving Subsidiary Corporation) (collectively, the “Company Advised PartiesGroup”), on the one hand, and (y) the Domesticated SPAC, the Surviving Subsidiary Corporation or any of their Subsidiaries or affiliates, on the other hand, any legal counsel, including Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP (“Xxxxxx”), that represented the Company prior to the Acquisition Closing Date may represent any member of the Company Group in such dispute even though the interests of such persons may be directly adverse to the Domesticated SPAC or the Surviving Subsidiary Corporation or the Company Subsidiaries 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 the Domesticated SPAC or the Surviving Subsidiary Corporation or the Company Subsidiaries. SPAC and the Company, on behalf of their respective successors and assigns and their Related Persons (including, after the ClosingAcquisition Closing Date, the Surviving Subsidiary Corporation and the Company Subsidiaries), further agree that, as to all legally privileged communications prior to the Acquisition Closing Date (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 Transaction Documents or the Transactions) between or among the Company or any member of the Company Group, on the one hand, and Xxxxxx, on the other hand, the attorney-client privilege and the expectation of client confidence shall survive the Acquisition Merger and belong to the Company Group after the Acquisition Closing Date, and shall not pass to or be claimed or controlled by the Domesticated SPAC or the Surviving Subsidiary Corporation.
Appears in 1 contract
Samples: Business Combination Agreement (CHW Acquisition Corp)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Sellers’ Representative has retained Xxxxx Xxxxxx LLP (a“DM”) SPAC and to act as its counsel in connection with the Xxxxxxx Parties transactions contemplated hereby. Buyer hereby agree that, agrees that in the event of a dispute with respect under this Agreement, the Ancillary Documents and the documents and instruments contemplated hereby and thereby related to this Agreement the transactions contemplated hereby or the Transactions thereby that arises after the Closing between or among the Surviving Corporation or the SponsorBuyer Indemnified Parties, on the one hand, and any Xxxxxxx Companythe Sellers’ Representative and Sellers, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) DM may represent the Sponsor Sellers’ Representative and/or Sellers in such dispute even though the interests of the Sponsor Sellers’ Representative and/or Sellers may be directly adverse to those of the Surviving CorporationBuyer Indemnified Parties, and even though such counsel DM may have represented SPAC 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 may be handling ongoing matters for SPAC or obtain the Sponsor. All communication between or among Prior SPAC Counsel, on informed consent of the one hand, Sellers’ Representative and/or Sellers and the Surviving Corporation 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 SponsorCompany, on the other hand, shall remain privileged after Sellers’ Representative and/or any Seller that relate in any way to the transactions contemplated hereby or a similar transaction prior to the Closing and (the “Protected Communications”), the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely with respect to the Sponsor, shall Protected Communications (the “Associated Rights”) belong to the Sellers’ Representative and Sellers and may be controlled by the Sponsor Sellers’ Representative and Sellers and shall not pass to or be claimed by Buyer, the Company (after Closing) or any Xxxxxxx Party of their Subsidiaries; provided, however, the parties hereto expressly agree that the Protected Communications and Associated Rights shall not include any communications at or prior to the Surviving Corporation following Closing among DM, the Company, the Sellers’ Representative and/or any Seller: (i) relating to (A) the pre-Closing operation by the Company of its business other than the negotiation of the transactions contemplated hereby or a similar transaction prior to the Closing or (B) Fraud (whether related to the negotiation of the transactions contemplated hereby or a similar transaction prior to the Closing or otherwise); or (ii) with respect to which the attorney-client privilege could not validly be asserted by the Company prior to the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacityx) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 any Xxxxxxx Company or the Surviving CorporationBuyer Indemnified Parties, on the one hand, and a third party other than the SponsorSellers’ Representative or a Seller, on the other hand, the Sponsor Buyer Indemnified Parties may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications to such third party; provided, and no Xxxxxxx Company nor the Surviving Corporation however, that Buyer Indemnified Parties may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation Sellers’ Representative and (y) if Buyer is legally required by order of a Governmental Order Authority to access or obtain a copy of all or a portion of the Privileged SPAC Deal Protected Communications, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify Buyer shall be entitled to access or obtain a copy of and disclose the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 Protected Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable necessary to comply with 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 partyorder.
(f) Each of the Parties acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Acquiror and the Xxxxxxx Parties Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Acquiror, Merger Sub and/or Sponsor, on the one hand, and any Xxxxxxx the Company, on the other hand, that Shearman any legal counsel (including Xxxxxx Xxxxxxx & Sterling Xxxx LLP (or any of its successors and Ellenoff Xxxxxxxx & Schole LLP) that represented SPAC or the Acquiror and/or Sponsor prior to the Closing (“Prior SPAC Acquiror Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to those of the Surviving CorporationAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the Acquiror and/or Sponsor. All communication between or among Prior SPAC Acquiror Counsel, on the one hand, and the Surviving Corporation Acquiror, Merger Sub or the 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 any Xxxxxxx Party Company, the Acquiror or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx the Company prior to the Closing with SPAC Acquiror or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx the Company following the Closing.
(b) Each of the Xxxxxxx Parties The Company further agrees, on behalf of itself and its Affiliates, thatand, 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 SPAC Acquiror Counsel, SPAC the Acquiror, Merger Sub or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and 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 Acquiror Deal Communications”) shall be deemed to be retained and owned collectively by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company the Acquiror or the Surviving Corporation View Companies after the Closing. All SPAC Acquiror Deal Communications that are attorney-client privileged (the “Privileged SPAC Acquiror Deal Communications”) 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 any Xxxxxxx Company the Acquiror or the Surviving Corporation 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 any Xxxxxxx Company the Acquiror or the Surviving CorporationView Companies, on the one hand, and a third party other than the Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Acquiror Deal Communications to such third party, and no Xxxxxxx Company nor the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company the Acquiror or the Surviving Corporation View Companies is legally required by Governmental Order governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Acquiror Deal Communications, PubCo shall, as promptly as practicable the Acquiror shall immediately (and, in any event, within two (2) Business Days after becoming aware thereofDays) notify the Sponsor in writing (including by making specific reference to this Section 12.1810.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies order and the Surviving Corporation 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 SPAC Acquiror Counsel constitute property of its clients, only the Sponsor shall hold such property rights, rights and Prior SPAC Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Acquiror Deal Communications by reason of any attorney-client relationship between Prior SPAC Acquiror Counsel, on the one hand, and the Acquiror or any Xxxxxxx Company or the Surviving Corporation View Companies after the Closing, on the other hand, 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) Xxxxxxx agrees, The Company agrees on behalf of itself and each of the Xxxxxxx Companies Acquiror and the Surviving Corporation View Companies after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company Acquiror or, after the Closing Closing, the View Companies receives or takes physical possession of any SPAC Acquiror Deal Communications, (Aa) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person Person, of the privileges or protections described in this Section 12.1810.18, and (Bb) none of neither the Xxxxxxx Companies Acquiror nor the Surviving Corporation View Companies after the Closing shall assert any claim that the 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 Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Surviving Corporation Acquiror or any Xxxxxxx View Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation Acquiror or any Xxxxxxx Company 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 SPAC Acquiror Deal Communications from Prior SPAC Acquiror Counsel so long as such SPAC 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 Dechert Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies Company in various matters involving a range of issues and as counsel to the Xxxxxxx Companies Company in connection with the negotiation, preparation, execution, authorization or performance negotiation of this Agreement and Agreement, the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under this Agreement, SPAC the Acquiror hereby irrevocably waives and agrees not to assert 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 Xxxxxxx Companies Company and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx View Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. Buyer, on behalf of itself and its Affiliates (a) SPAC which, for this purpose, shall be deemed to include the Company and the Xxxxxxx Parties hereby agree Subsidiaries) agrees that, notwithstanding any current or prior representation of the Company and the Subsidiaries by Sidley Austin LLP, Sidley Austin LLP shall be allowed to represent Seller and any of his Affiliates in any matters and disputes adverse to Buyer, the Company and/or any Subsidiary that either are existing on the date hereof or arise in the event future. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries) hereby waives any claim that Buyer, the Company or any Subsidiary has or may have that Sidley Austin LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and agrees that, if a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer, the Company or among the Surviving Corporation or the Sponsor, on the one hand, any Subsidiary and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (Seller or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) his Affiliates, then Sidley Austin LLP may represent the Sponsor Seller or such Affiliate in such dispute even though the interests of the Sponsor Seller or such Affiliate may be directly adverse to those of Buyer, the Surviving Corporation, Company and/or such Subsidiary and even though such counsel Sidley Austin LLP may have represented SPAC the Company or such Subsidiary in a matter substantially related to such dispute. Buyer, or may on behalf of itself and its Affiliates (which, for this purpose, shall be handling ongoing matters for SPAC or deemed to include the Sponsor. All communication Company and the Subsidiaries), also agrees that, as to all communications between or among Prior SPAC CounselSidley Austin LLP and Seller, on the one handCompany, and any Subsidiary and/or any of their respective Affiliates that occur prior to the Surviving Corporation or Closing, the Sponsor, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Seller and may be controlled by the Sponsor Seller and shall not pass to or be claimed by Buyer, the Company or any Xxxxxxx Party or the Surviving Corporation following the ClosingSubsidiary. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, 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, preparation, execution, authorization or performance of this Agreement and 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 if a dispute arises between any Xxxxxxx Buyer, the Company or the Surviving Corporation, on the one hand, any Subsidiary and a third party other than Seller or an Affiliate of Seller after the SponsorClosing, on then the other hand, Company or any such Subsidiary (to the Sponsor extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party, and no Xxxxxxx Company nor party of confidential communications by Sidley Austin LLP; provided that if the Surviving Corporation may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order Subsidiaries elect to access or obtain a copy of all or a portion of waive such privilege, the Privileged SPAC Deal Communications, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation 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 the 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 any Xxxxxxx Company or the Surviving Corporation after the ClosingSubsidiaries, on the other handas applicable, so long as shall provide Seller with reasonable advance notice of 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 partywaiver.
(e) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. (a) SPAC Buyer, the Sellers and the Xxxxxxx Parties Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation Buyer or the SponsorCompany and the Xxxxxxx, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling Xxxxxx LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor Sellers in such dispute even though the interests of the Sponsor Sellers may be directly adverse to those of the Surviving CorporationCompany, and even though such counsel Winston & Xxxxxx LLP may have represented SPAC the Company in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC or the SponsorCompany. All communication between or among Prior SPAC Counsel, on the one hand, Buyer and the Surviving Corporation or Company further agree that, as to all communications between Winston & Xxxxxx LLP, the Sponsor, on the other hand, shall remain privileged after the Closing Company and the Sellers that relate in any way to the transactions contemplated by this Agreement, the attorney-client, work product, business strategy or similar protection or privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Sellers and may be controlled by the Sponsor same, and shall not transfer, pass to or be claimed or controlled by any Xxxxxxx Party the Company or Buyer notwithstanding the Surviving Corporation following transfer of Common Stock hereunder; provided that the Closing. Notwithstanding the foregoing, any privileged communications or information shared by any Xxxxxxx Company prior Sellers shall not waive such attorney-client privilege other than to the Closing extent appropriate in connection with SPAC the enforcement or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following the Closing.
(b) Each of the Xxxxxxx Parties further agrees, on behalf of itself and its Affiliates, that, after the Closing, all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any defense of their respective Representatives that relate in any way to the negotiation, preparation, execution, authorization rights or performance of obligations existing under this Agreement and the Ancillary Agreements or other Transaction Documents. Each of Buyer and, following the consummation Closing, the Company, for itself and their respective directors, managers, partners, members, officers, employees and Affiliates, and each of their successors and assigns, hereby further agree not to take any action that would result in any subsequent waiver 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 by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 respecting any such communications to any third party.
(c) privileged communication. Notwithstanding the foregoing, in the event that a dispute arises between any Xxxxxxx Company Buyer or the Surviving Corporation, on the one hand, Company and a third party Person other than the Sponsor, on Sellers after the other handClosing, the Sponsor Company may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by Winston & Xxxxxx LLP to such third partyPerson; provided, and no Xxxxxxx however, that the Company nor the Surviving Corporation may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the Sponsor. In the event that any Xxxxxxx Company or the Surviving Corporation is legally required by Governmental Order to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communicationsapplicable Seller, PubCo shall, as promptly as practicable (and, in any event, within two Business Days after becoming aware thereof) notify the Sponsor in writing (including by making specific reference to this Section 12.18) so that the Sponsor can seek a protective order; provided, further, that the Xxxxxxx Companies and the Surviving Corporation agree to use all commercially reasonable efforts to assist therewithwhich consent will not be unreasonably withheld.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the 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 any Xxxxxxx Company or the Surviving Corporation 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) Xxxxxxx agrees, on behalf of itself and each of the Xxxxxxx Companies and the Surviving Corporation after the Closing, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation or any Xxxxxxx Company 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 acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving a range of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements and the consummation of 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 Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Each of the parties hereto acknowledges and agrees that Xxxxxxx, Xxxxxx & Xxxx, P.C. (“Xxxxxxx”) has acted as counsel to the Acquired Companies and the Sellers in connection with the negotiation of 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, Xxxxxxx Parties hereby agree thatrepresenting the Sellers after the Closing, in the event a dispute including with respect to this Agreement or the Transactions arises after the Closing between or among the Surviving Corporation or the Sponsor, on the one hand, and any Xxxxxxx Company, on the other hand, that Shearman & Sterling LLP (or any of its successors that represented SPAC or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor disputes in such dispute even though which the interests of the Sponsor Sellers may be directly adverse to those of the Surviving CorporationPurchaser and its Affiliates (including the Acquired Companies), and even though such counsel Xxxxxxx may have represented SPAC the Acquired Companies in a matter substantially related to any such dispute, or may be handling ongoing matters for SPAC or the SponsorAcquired Companies. All communication between or among Prior SPAC Counsel, on the one handThe Purchaser further consents and agrees to, and agrees to cause the Surviving Corporation or the Sponsor, on the other hand, shall remain privileged after the Closing Acquired Companies to consent and the privilege and the expectation of client confidence relating thereto shall belong solely agree to the Sponsor, shall be controlled communication by Xxxxxxx to the Sponsor and shall not pass Sellers in connection with any such representation of any fact known to or be claimed Xxxxxxx arising by any Xxxxxxx Party or reason of Xxxxxxx’x prior representation of the Surviving Corporation following the ClosingAcquired Companies. Notwithstanding In connection with the foregoing, the Purchaser hereby irrevocably waives and agrees not to assert, and agrees to cause the Acquired Companies to irrevocably waive and not to assert, any privileged communications conflict of interest arising from or information shared by any Xxxxxxx Company in connection with (i) Xxxxxxx’x prior representation of the Acquired Companies and (ii) Xxxxxxx’x representation of the Sellers prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of such Xxxxxxx Company following and after the Closing.
(b) Each of the Xxxxxxx Parties The Purchaser further agrees, on behalf of itself and its Affiliates, thatand, after the Closing, on behalf of the Acquired Companies, that all communications in any form or format whatsoever between or among Xxxxxxx, on the one hand, and the Acquired Companies, the Sellers, any of Prior SPAC Counsel, SPAC or the Sponsortheir Subsidiaries, or any of their respective Representatives directors, managers, officers, employees or other representatives, on the other hand, that relate in any way to the negotiation, preparation, execution, authorization or performance of this Agreement documentation and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, or any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned by the SponsorSellers, shall be controlled by the Sponsor Sellers, and shall not pass to or be claimed by the Purchaser, the Acquired Companies or any Xxxxxxx Company or the Surviving Corporation after the Closingof their Subsidiaries. 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 the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by any Xxxxxxx Company or the Surviving Corporation 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 Sellers. In the event that a dispute arises between any Xxxxxxx Company the Purchaser or the Surviving CorporationAcquired Companies, on the one hand, and a third party other than the Sponsora Seller, on the other hand, the Sponsor Purchaser or the Acquired Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party, and no Xxxxxxx Company nor the Surviving Corporation may not waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of the SponsorSellers. In the event that any Xxxxxxx the Purchaser, the Company or the Surviving Corporation any of their Subsidiaries is legally required by Governmental Order 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 Business Days after becoming aware thereof) the Purchaser shall immediately notify the Sponsor Sellers’ Representative in writing (including by making specific reference to this Section 12.18) so that the Sponsor Sellers’ Representative can seek a protective order; provided, further, that the Xxxxxxx Companies order and the Surviving Corporation agree Purchaser agrees to use all commercially reasonable efforts to assist therewith.
(d) . To the extent that files or other materials maintained by Prior SPAC Counsel Xxxxxxx constitute property of its clients, only the Sponsor Sellers shall hold such property rights, rights and Prior SPAC Counsel Xxxxxxx 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 CounselXxxxxxx, on the one hand, and any Xxxxxxx Company or the Surviving Corporation after the ClosingCompany, on the other hand. The Purchaser agrees that it will not, 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) Xxxxxxx agrees, on behalf of itself and each of that it will cause the Xxxxxxx Acquired Companies and the Surviving Corporation after the Closingnot to, (i) to the extent that the Surviving Corporation or any Xxxxxxx Company after the Closing 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 the Sponsor or any other Person of the privileges or protections described in this Section 12.18, and (B) none of the Xxxxxxx Companies nor the Surviving Corporation after the Closing shall assert any claim that the 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 the Surviving Corporation or any Xxxxxxx Company Sellers waive the attorney-client or other privilege, or by otherwise asserting that the Surviving Corporation Purchaser or any Xxxxxxx Company after the Closing has Acquired Companies have the right to waive the attorney-client or other privilege and or (iiiii) 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 partyXxxxxxx.
(fc) Each In furtherance of the Parties acknowledges and agrees that Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Xxxxxxx Companies in various matters involving foregoing, it shall not be a range breach of issues and as counsel to the Xxxxxxx Companies in connection with the negotiation, preparation, execution, authorization or performance any provision of this Agreement and if, prior to the Ancillary Agreements and Closing, the consummation Sellers, the Acquired Companies or any of their Subsidiaries, or any of their respective directors, managers, officers, employees or other Representatives takes any action to protect from access or remove from the premises of the TransactionsAcquired Companies (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications. In connection with the event that any matter copy, backup, image, or dispute under this Agreementother form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by the Purchaser, SPAC hereby irrevocably waives the Acquired Companies or any of their Subsidiaries (each, a “Residual Communication”), the Purchaser agrees that it will not, and agrees that it will cause the Acquired Companies, and their respective directors, managers, officers, employees or other representatives not to assert use or attempt to use any conflict of interest arising from means to access, retrieve, restore, recreate, unarchive or in connection with (i) Prior Company Counsel’s prior representation of the Xxxxxxx Companies and (ii) Prior Company Counsel’s representation of otherwise gain access to or view any member of the Xxxxxxx Companies (collectively, the “Company Advised Parties”) prior to and after the ClosingResidual Communication for any purpose.
Appears in 1 contract
