Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained Xxxxx, Xxxxxx-Xxxx (“Arnon”) to act as its counsel in connection with the transactions contemplated hereby and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any of its Affiliates (including, after the Closing, the Company or any of its Subsidiaries), and even though Arnon may have represented the Company or any of its Subsidiaries in a matter substantially related to such dispute. (b) In addition, all communications made at or prior to the Closing, and which constitute attorney-client confidences under applicable law, by representatives of the Company, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course of, and to the extent relating to, the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal Communications, or to the files of Arnon relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon and after the Closing, (i) the Equityholders (and not the Company or any of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement and the Privileged Deal Communications, and none of the Company or any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications to prevent disclosure to such third-party of such Privileged Deal Communication, and Purchaser may not waive such privilege without providing no fewer than five (5) Business Days’ prior written notice to the Sellers’ Representative. (c) Each of the parties hereto further agree that Xxxxx are third-party beneficiaries of this Section 12.13.
Appears in 1 contract
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained XxxxxPurchaser agrees, Xxxxxx-Xxxx (“Arnon”) to act as on its counsel in connection with the transactions contemplated hereby own behalf and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any on behalf of its Affiliates (including, after the Closing, any Group Company) and its and their respective managers, directors, members, partners, officers and employees, and each of their successors and assigns (all such parties, the Company “Purchaser Parties”), that Xxxxxxx, Swaine & Xxxxx LLP (“Cravath”), Xxxxxxx, Friedlander, Xxxxxx & Xxxxxxx LLP and Xxxxx, Xxxxxxx & Xxxxx, LLP (together, “Seller’s Counsel”) may serve as counsel to, and KPMG US LLC (“KPMG”) may provide professional services to, Seller, on the one hand, and the Group Companies, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Transaction Agreements and the consummation of the Transactions (the “Current Representation”), and that, following consummation of the Transactions, any Seller’s Counsel may serve as counsel to, and KPMG may provide professional services to, Seller or any of its Subsidiaries), and even though Arnon may have represented the Company Affiliates or any of its Subsidiaries their respective managers, directors, members, partners, officers or employees, in each case, in connection with any dispute, litigation, claim, Proceeding or obligation arising out of or relating to this Agreement, the other Transaction Agreements or the Transactions (any such representation, a matter substantially related “Post-Closing Representation”), notwithstanding the Current Representation. Purchaser on behalf of itself and the Purchaser Parties hereby consents to any such disputePost-Closing Representation and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Purchaser acknowledges that the foregoing provision applies whether or not any Seller’s Counsel provide legal services to, and whether or not KPMG provides professional services to, any Group Company after the Closing Date.
(b) In additionPurchaser, on behalf of itself and the Purchaser Parties, hereby irrevocably acknowledges and agrees that with respect to all communications made at between or among the Business Group Members prior to the Closing, Seller and which constitute its counsel (including Seller’s Counsel) made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement or the Transactions, or any matter relating to the foregoing, the expectation of client confidence and any attorney-client confidences under applicable law, by representatives of the Company, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course ofprivilege attaching thereto belongs to, and shall be controlled by, Seller (notwithstanding that any Business Group Members participated in, was party to the extent relating toor was furnished such communications nor that any Business Group Member is also a client of such counsel), the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal Communications, or to the files of Arnon relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon from and after the Closing, (i) the Equityholders (and not the neither Purchaser nor any Group Company nor any Person purporting to act on behalf of or through Purchaser or any Group Company, will seek to obtain the same by any process. From and after the Closing, Purchaser, on behalf of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement itself and the Privileged Deal CommunicationsPurchaser Parties, waives and none of the Company or will not assert any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications communication between any Seller’s Counsel, on the one hand, and the Group Companies or Seller, on the other hand, occurring prior to the Closing in connection with the Current Representation or any Post-Closing Representation, and the expectation of client confidence belongs to Seller and shall be controlled by Seller and shall not pass to or be claimed by Purchaser, any Group Company or any of their respective Affiliates. In connection with any dispute or Proceeding that may arise between Seller, on the one hand, and Purchaser or, after the Closing, any Group Company, on the other hand, Seller (and not Purchaser or any Group Company) will have the right to decide whether or not to waive any attorney-client privilege that may apply to any communications between any Seller’s Counsel, on the one hand, and any Group Company, on the other hand, that occurred before the Closing, except to the extent required to do so by a court order. Notwithstanding the foregoing, in the event a dispute arises between Purchaser or the Group Companies, on the one hand, and a Person other than Seller (or any Affiliate thereof), on the other hand, after the Closing, the Group Companies may assert the attorney-client privilege to prevent disclosure of confidential communications by any Seller’s Counsel to such third-party of such Privileged Deal CommunicationPerson; provided, and Purchaser however, that no Group Company may not waive such privilege without providing no fewer than five (5) Business Days’ the prior written notice to the Sellers’ Representativeconsent of Seller.
(c) Each of In the parties hereto further agree event that Xxxxx are thirdany third party commences Proceedings seeking to obtain from Purchaser or its Affiliates (including, after the Closing, any Group Company) attorney-party beneficiaries of this Section 12.13client communications involving any Seller’s Counsel in connection with the Current Representation, Purchaser shall promptly notify in writing Seller so as to permit Seller to participate in any such Proceedings.
Appears in 1 contract
Conflicts; Privilege. (a) It is acknowledged by each Buyer, on behalf of the parties hereto that the Company has retained Xxxxx, Xxxxxx-Xxxx (“Arnon”) to act as its counsel in connection with the transactions contemplated hereby itself and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any of its Affiliates (including, after the Closing, the Group Companies) acknowledges and agrees that XxXxxxxxx Law Group, P.A. (“Company Counsel”) has acted as counsel for Seller and each of the Group Companies in connection with this Agreement and the transactions contemplated hereby (the “Acquisition Engagement”), and in connection with the Acquisition Engagement, Company Counsel has not acted as counsel for Buyer or any of its Subsidiaries), and even though Arnon may have represented the Company or any of its Subsidiaries in a matter substantially related to such disputeAffiliates.
(b) In additionOnly Seller, the Group Companies and their respective Affiliates shall be considered clients of Company Counsel with respect to the Acquisition Engagement. Buyer, on behalf of itself and its Affiliates (including after the Closing, the Group Companies) acknowledges and agrees that all confidential communications made at or between Seller, any Group Company and their respective Affiliates, on the one hand, and Company Counsel, on the other hand, in connection with the Acquisition Engagement, which, immediately prior to the Closing, and which constitute was attorney-client confidences under applicable lawprivileged communications between Seller, by representatives of the Company, the Sellers’ Representative or the Equityholders or any Group Company and their respective Affiliates in Affiliates, on the course ofone hand, and to Company Counsel, on the extent relating toother hand, the negotiation(such communications, documentation and consummation of the Transactions (collectively, the “Privileged Deal Protected Communications”) shall be deemed to belong solely to Seller and its Affiliates (other than the Equityholders (Group Companies), and not the Company). AccordinglyGroup Companies, neither the Company nor any of its Affiliates and shall have access not pass to any Privileged Deal Communicationsor be claimed, held, or to the files of Arnon relating to the engagement described in this Section, even used by Buyer or any Group Company upon or after the Closing has occurredClosing. Without limiting the generality of the foregoing, upon and after the Closing, (i) the Equityholders (and not the Company or any of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement and the Privileged Deal Communications, and none of the Company or any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon Company Counsel in respect of such engagement the Acquisition Engagement constitute property of the clienta Group Company, only the Equityholders Seller and their respective its Affiliates (and not other than the Company or any of its AffiliatesGroup Companies) shall hold such property rights and (iiiii) Arnon Company Counsel shall have no duty whatsoever to reveal or disclose any such Privileged Deal Protected Communications or files to any Group Company or Buyer by reason of any attorney-client relationship between Xxxxx Company Counsel and the Companyany Group Company or otherwise; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding notwithstanding the foregoing, (x) Company Counsel shall not disclose any such Protected Communications or files to any third parties (other than representatives, accountants and advisors of Seller and its Affiliates (other than the parties agree Group Companies); provided, that Privileged Deal Communications do such representatives, accounts and advisors are obligated to maintain the confidence of such Protected Communications) and (y) all rights, files, and information that are not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as related to the Privileged Deal CommunicationsAcquisition Engagement, any other pre-Closing privileged communications maintained by including matters that relate to the Company operation of the Group Companies shall be belong to the sole property Group Companies. Buyer, on behalf of Purchaser or itself and its Affiliates (including after the Closing, the Group Companies) irrevocably waives any right it may have to discover or obtain Protected Communications, provided, however, the foregoing shall prohibit neither Buyer nor any Group Company from seeking proper discovery of such Protected Communications nor Seller from asserting that such Protected Communications are not discoverable to the extent that attorney client privileges have attached thereto. If and to the extent that, at any time subsequent to Closing, Buyer or any of its Subsidiaries). In additionAffiliates (including after the Closing, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert Group Companies) has the right to waive any attorney-client privilege with respect to any Privileged Deal Communications Protected Communications, Buyer, on behalf of itself and its Affiliates (including after the Closing, the Group Companies) shall be entitled to waive such privilege only with the prior written consent of Seller (such consent not to be unreasonably withheld). In the event that a dispute arises between Buyer or a Group Company, on the one hand, and a Person other than Seller, on the other hand, after the Closing, Buyer and any Group Company, as applicable, may assert the attorney-client privilege to prevent disclosure of Protected Communications to such third-party of such Privileged Deal Communication, and Purchaser may not waive such privilege without providing no fewer than five (5) Business Days’ prior written notice to the Sellers’ Representativeparty.
(c) Each Buyer, on behalf of itself and its Affiliates (including after the Closing, the Group Companies) acknowledges and agrees that Company Counsel has acted as counsel for Seller, the Group Companies and their respective Affiliates for several years and that Seller may reasonably anticipate that Company Counsel will continue to represent it and/or its Affiliates, individually and/or collectively, in future matters. Accordingly, Buyer, on behalf of itself and its Affiliates (including after the Closing, the Group Companies) expressly (i) consents to Company Counsel’s representation of Seller and/or its Affiliates, individually or collectively, and/or any of their respective agents (if any of the parties hereto further agree that Xxxxx foregoing Persons so desire) in any matter, including, without limitation, any post-Closing matter in which the interests of Buyer and the Group Companies, on the one hand, and Seller and/or any of its Affiliates, on the other hand, are thirdadverse, including any matter relating to the transactions contemplated hereby, and whether or not such matter is one in which Company Counsel may have previously advised Seller, any Group Company or their respective Affiliates and (ii) consents to the disclosure by Company Counsel to Seller or its Affiliates of any information learned by Company Counsel prior to the date hereof in the course of its representation of Seller, the Group Companies or their respective Affiliates, whether or not such information is subject to attorney-party beneficiaries client privilege, attorney work product protection, or Company Counsel’s duty of this Section 12.13confidentiality.
(d) From and after the Closing, each Group Company shall cease to have any attorney-client relationship with Company Counsel, unless and to the extent Company Counsel is expressly engaged in writing by such Group Company to represent such Group Company after the Closing. Any such representation of such Group Company by Company Counsel after the Closing shall not affect the foregoing provisions hereof.
Appears in 1 contract
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained XxxxxThe Purchaser agrees, Xxxxxx-Xxxx (“Arnon”) to act as on its counsel in connection with the transactions contemplated hereby own behalf and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any on behalf of its Affiliates (including, after the Closing, any Group Company) and its and their respective managers, directors, members, partners, officers and employees, and each of their successors and assigns (all such parties, the Company “Purchaser Parties”), that Xxxxxxx, Swaine & Xxxxx LLP and Xxxxxx Xxxx Xxxxxxxx & Xxxxxxxx LLP (together, “Guarantor’s Counsel”) may serve as counsel to, and Xxxxxxx LLP (“Xxxxxxx”) may provide professional services to, the Guarantor, on the one hand, and the Group Companies, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Transaction Documents and the consummation of the Transactions (the “Current Representation”), and that, following consummation of the Transactions, any Guarantor’s Counsel may serve as counsel to, and Xxxxxxx may provide professional services to, the Guarantor or any of its Subsidiaries), and even though Arnon may have represented the Company Affiliates or any of its Subsidiaries their respective managers, directors, members, partners, officers or employees, in a matter substantially related each case, in connection with any dispute, litigation, claim, Proceeding or obligation arising out of or relating to this Agreement, the other Transaction Documents or the Transactions, notwithstanding such disputerepresentation (or any continued representation) of the Group Companies, and the Purchaser on behalf of itself and the Purchaser Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. The Purchaser acknowledges that the foregoing provision applies whether or not any Guarantor’s Counsel provide legal services to, and whether or not Xxxxxxx provides professional services to, any Group Company after the Closing Date.
(b) In additionThe Purchaser, on behalf of itself and the Purchaser Parties, hereby irrevocably acknowledges and agrees that for all privileged communications made at between or among the Group Companies prior to the Closing, the Guarantor and which constitute attorney-client confidences under applicable lawtheir counsel (including Guarantor’s Counsel) made in connection with the negotiation, by representatives preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of the Company, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course of, and to the extent relating to, this Agreement or the negotiationTransactions, documentation and consummation of or any matter relating to the Transactions (collectivelyforegoing, the “Privileged Deal Communications”) belong solely expectation of client confidence belongs to, and shall be controlled by, the Guarantor (notwithstanding that any Group Company participated in, was party to or was furnished such communications nor that any Group Company is also a client of such counsel)in connection with any dispute or Proceeding that may arise between the Equityholders Guarantor, on the one hand, and the Purchaser or, after the Closing, any Group Company, on the other hand. In connection with any such dispute or Proceeding, the Guarantor (and not the Purchaser or any Group Company). Accordingly, neither ) will have the Company nor right to decide whether or not to waive any of its Affiliates shall have access attorney-client privilege that may apply to any Privileged Deal Communications, or to communications between any Guarantor’s Counsel and any Group Company that occurred before the files of Arnon relating to the engagement described in this Section, even after the Closing has occurredClosing. Without limiting the generality of Notwithstanding the foregoing, upon in the event a dispute arises between the Purchaser or the Group Companies, on the one hand, and a Person other than the Guarantor (or any Affiliate thereof), on the other hand, after the Closing, (i) the Equityholders (and not the Company or any of its Affiliates) shall be the sole holders of Group Companies may assert the attorney-client privilege with respect to prevent disclosure of confidential communications by any Guarantor’s Counsel to such engagement and the Privileged Deal Communications, and none of the Company or any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the CompanyPerson; provided, however, that none of the Equityholders or their respective Affiliates no Group Company may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding Guarantor.
(c) In the foregoing, event that any third party commences Proceedings seeking to obtain from the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In additionincluding, in after the event that a dispute arises between Purchaser or its Affiliate and a Person other than an EquityholderClosing, Purchaser may assert the any Group Company) attorney-client privilege communications involving any Guarantor’s Counsel in connection with respect the Current Representation, the Purchaser shall promptly notify the Guarantor in writing so as to permit the Guarantor to participate in any Privileged Deal Communications to prevent disclosure to such third-party of such Privileged Deal Communication, and Purchaser may not waive such privilege without providing no fewer than five (5) Business Days’ prior written notice to the Sellers’ RepresentativeProceedings.
(c) Each of the parties hereto further agree that Xxxxx are third-party beneficiaries of this Section 12.13.
Appears in 1 contract
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained XxxxxPurchaser agrees, Xxxxxx-Xxxx (“Arnon”) to act as on its counsel in connection with the transactions contemplated hereby own behalf and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any on behalf of its Affiliates (including, after the Principal Closing, the Company and the Company Subsidiaries, and after the Subsequent Closing, the Subsequent Transferred Company) and its and their respective managers, directors, members, partners, officers, and employees, and each of their successors and assigns (all such parties, the “Purchaser Parties”), that Cravath, Swaine & Xxxxx LLP and Xxxxxx, Xxxxx & Xxxxxxx LLP (together, “Seller’s Counsel”) may serve as counsel, and Xxxxxxxx & Touche LLP and Ernst & Young LLP (together, “Seller’s Accountants”) may provide professional services, to Seller, on the one hand, and the Group Companies, on the other hand, in connection with the negotiation, preparation, execution, and delivery of this Agreement, the other Transaction Agreements, and the consummation of the Transactions (the “Current Representation”), and that, following consummation of the Transactions, any Seller’s Counsel may serve as counsel to, and Seller’s Accountants may provide professional services to, Seller or any of its SubsidiariesAffiliates or any of their respective managers, directors, members, partners, officers or employees, in each case, in connection with any Proceeding or obligation arising out of or relating to this Agreement, the other Transaction Agreements or the Transactions (any such representation, a “Post-Closing Representation”), notwithstanding the Current Representation. Purchaser, on behalf of itself and the Purchaser Parties, hereby consents to any such Post-Closing Representation and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Purchaser acknowledges that the foregoing provision applies whether or not any Seller’s Counsel provides legal services to, and whether or not Seller’s Accountants provide professional services to, any Group Company after the applicable Closing Date. Similarly, Seller, on behalf of itself and any Seller Group Member, hereby consents to any representation by Xxxxxx Xxxxxx LLP (“Purchaser’s Counsel”) or PricewaterhouseCoopers LLP (“Purchaser’s Accountant”) to Purchaser or any Purchaser Parties in connection with any Post-Closing Representation and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto, even though the interests of Purchaser or any Purchaser Parties may be directly adverse to Seller or any Seller Group Member and even though Arnon Purchaser’s Counsel or Purchaser’s Accountant may have represented the a Group Company or any of its Subsidiaries in a matter substantially related to such disputePost-Closing Representation. Seller acknowledges that the foregoing provision applies whether or not Purchaser’s Counsel provided legal services to, and whether or not Purchaser’s Accountant provided professional services to, any Group Company prior to the applicable Closing Date.
(b) In additionPurchaser, on behalf of itself and the Purchaser Parties, hereby irrevocably acknowledges and agrees that with respect to all communications made at between or among the Group Companies occurring prior to the applicable Closing, Seller and which constitute attorney-client confidences under applicable lawits counsel (including Seller’s Counsel) made in connection with the negotiation, by representatives of the Companypreparation, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course ofexecution, delivery, and to the extent performance under, or any Proceeding arising out of or relating to, this Agreement or the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal CommunicationsTransactions, or to the files of Arnon any matter relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon the expectation of client confidence and after the Closing, (i) the Equityholders (and not the Company or any of its Affiliates) shall be the sole holders of the attorney-client privilege with respect attaching thereto belongs to, and shall be controlled by, Seller (notwithstanding that any Group Companies participated in, was party to or was furnished such engagement communications nor that any Group Company is also a client of such counsel), and from and after the applicable Closing, neither Purchaser nor any Group Company nor any Person purporting to act on behalf of or through Purchaser or any Group Company, will seek to obtain the same by any process. From and after the applicable Closing, Purchaser, on behalf of itself and the Privileged Deal CommunicationsPurchaser Parties, and none of the Company or any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates waives (and will not the Company or assert) any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications communication between any Seller’s Counsel, on the one hand, and the Group Companies or Seller, on the other hand, occurring prior to the applicable Closing in connection with the Current Representation or any Post-Closing Representation, and the expectation of client confidence belongs to Seller and shall be controlled by Seller and shall not pass to or be claimed by Purchaser, any Group Company or any of their respective Affiliates. In connection with any Proceeding that may arise between Seller, on the one hand, and Purchaser or, after the applicable Closing, any Group Company, on the other hand, Seller (and not Purchaser or any Group Company) will have the right to decide whether or not to waive any attorney-client privilege that may apply to any communications between any Seller’s Counsel, on the one hand, and any Group Company, on the other hand, that occurred before the applicable Closing, except to the extent required to do so by a Governmental Entity. Notwithstanding the foregoing, in the event a dispute arises between Purchaser or the Group Companies, on the one hand, and a Person other than Seller (or any Affiliate thereof), on the other hand, after the applicable Closing, the Group Companies may assert the attorney-client privilege to prevent disclosure of confidential communications by any Seller’s Counsel to such thirdPerson; provided, however, that no Group Company may waive such privilege without the prior written consent of Seller. For the avoidance of doubt, the aforementioned privileges and protections described herein shall not apply to portions of communications, including any attachments to electronic communications, that do not relate to any Current Representation or any Post-party Closing Representation.
(c) Seller, on its own behalf and on behalf of any Seller Group Member (other than the Group Companies) and its and their respective managers, directors, members, partners, officers, and employees, and each of their successors and assigns (all such Privileged Deal Communicationparties, the “Seller Parties”), hereby irrevocably acknowledges and agrees that with respect to all records, documents, communications, and other information relating to the Group Companies or the Business and arising after the applicable Closing, the expectation of client confidence and attorney-client privilege attaching thereto belongs to, and shall be controlled by, Purchaser, and from and after the applicable Closing, except as expressly set forth in this Agreement, neither Seller nor any Person purporting to act on behalf of or through Seller, will seek to obtain the same by any process. In connection with any Proceeding that may arise between Seller, on the one hand, and Purchaser or, after the applicable Closing, any Group Company, on the other hand, Purchaser and the Group Companies (and not Seller) will have the right to decide whether or not to waive any attorney-client privilege that may apply to any records, documents, communications, and other information relating to the Group Companies or the Business and arising after the applicable Closing. Notwithstanding the foregoing, in the event a dispute arises between Seller, on the one hand, and a Person other than Purchaser (or any of its Affiliates), on the other hand, after the applicable Closing, Seller may assert the attorney-client privilege to prevent disclosure of confidential communications to such Person; provided, however, that Seller may not waive such privilege without providing no fewer than five (5) Business Days’ the prior written notice to the Sellers’ Representativeconsent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed).
(cd) Each of In the parties hereto further agree event that Xxxxx are thirdany third party commences Proceedings seeking to obtain from Purchaser or its Affiliates (including, after the Principal Closing, the Company and the Company Subsidiaries, and after the Subsequent Closing, the Subsequent Transferred Company) attorney-client communications involving any Seller’s Counsel in connection with the Current Representation, Purchaser shall promptly notify in writing Seller so as to permit Seller to participate in any such Proceedings at its sole cost and expense.
(e) In the event that any third party beneficiaries of this Section 12.13commences Proceedings seeking to obtain from Seller or any Seller Group Member (other than the Group Companies) attorney-client communications involving any records, documents, communications, and other information relating to the Group Companies or the Business and arising after the applicable Closing, Seller shall promptly notify in writing Purchaser so as to permit Purchaser to participate in any such Proceedings at its sole cost and expense.
Appears in 1 contract
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained XxxxxPurchaser agrees, Xxxxxx-Xxxx (“Arnon”) to act as on its counsel in connection with the transactions contemplated hereby own behalf and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any on behalf of its Affiliates (including, after the Closing, any Group Company) and its and their respective past, present and future managers, directors, members, partners, officers and employees, and each of their successors and assigns (all such parties, the Company “Purchaser Parties”), that Cravath, Swaine & Xxxxx LLP (“Cravath”) may serve as counsel to, and PricewaterhouseCoopers LLP (“PwC”) may provide professional services to, Parent, on the one hand, and the Group Companies, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Transaction Agreements and the consummation of the Transactions (the “Current Representation”), and that, following consummation of the Transactions, Cravath may serve as counsel to, and PwC may provide professional services to, Parent or any of its Subsidiaries), and even though Arnon may have represented the Company Affiliates or any of its Subsidiaries their respective managers, directors, members, partners, officers or employees, in a matter substantially related each case, in connection with any dispute, litigation, claim, Proceeding or obligation arising out of or relating to this Agreement, the other Transaction Agreements or the Transactions, notwithstanding such disputerepresentation (or any continued representation) of the Group Companies, and Purchaser on behalf of itself and the Purchaser Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Purchaser acknowledges that the foregoing provision applies whether or not Cravath provides legal services to, and whether or not PwC provides professional services to, any Group Company after the Closing Date.
(b) In additionPurchaser, on behalf of itself and the Purchaser Parties, hereby irrevocably acknowledges and agrees that all communications made at between or among, on the one hand, the Group Companies prior to the ClosingClosing and Parent and, on the other hand, their counsel (including Cravath) made in connection with the negotiation, preparation, execution, delivery and which constitute attorney-client confidences under applicable lawperformance under, by representatives or any dispute or Proceeding arising out of the Company, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course of, and to the extent relating to, this Agreement or the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal CommunicationsTransactions, or to the files of Arnon any matter relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon are privileged communications between Parent and such counsel and the expectation of client confidence belongs to, and shall be controlled by, Parent (notwithstanding that any Group Company participated in, was party to or was furnished such communications nor that any Group Company is also a client of such counsel), and from and after the Closing, (i) the Equityholders (and not the neither Purchaser nor any Group Company nor any Person purporting to act on behalf of or through Purchaser or any Group Company, will seek to obtain the same by any process. From and after the Closing, Purchaser, on behalf of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement itself and the Privileged Deal CommunicationsPurchaser Parties, waives and none of the Company or will not assert any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications communication between Cravath, the Group Companies or Parent occurring prior to the Closing in connection with the Current Representation, and the expectation of client confidence belongs to Parent and shall be controlled by Parent and shall not pass to or be claimed by Purchaser, any Group Company or any of their respective Affiliates. In connection with any dispute or Proceeding that may arise between Parent, on the one hand, and Purchaser or, after the Closing, any Group Company, on the other hand, Parent (and not Purchaser or any Group Company) will have the right to decide whether or not to waive any attorney-client privilege that may apply to any communications between Cravath and any Group Company that occurred before the Closing. Notwithstanding the foregoing, in the event a dispute arises between Purchaser or the Group Companies, on the one hand, and a Person other than Parent (or any Affiliate thereof), on the other hand, after the Closing, the Group Companies may assert the attorney-client privilege to prevent disclosure of confidential communications by Xxxxxxx to such third-party of such Privileged Deal CommunicationPerson; provided, and Purchaser however, that no Group Company may not waive such privilege without providing no fewer than five (5) Business Days’ the prior written notice to the Sellers’ Representativeconsent of Parent.
(c) Each of In the parties hereto further agree event that Xxxxx are thirdany third party commences Proceedings seeking to obtain from Purchaser or its Affiliates (including, after the Closing, any Group Company) attorney-party beneficiaries of this Section 12.13client communications involving Cravath in connection with the Current Representation, Purchaser shall promptly notify Parent in writing so as to permit Parent to participate in any such Proceedings.
Appears in 1 contract
Samples: Equity Purchase Agreement (ADT Inc.)
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto Parties that the Company has retained Xxxxx, Xxxxxx-Xxxx Fenwick & West LLP (“ArnonSellers’ Counsel”) to act as its counsel in connection with the transactions contemplated hereby Transactions and that Xxxxx Sellers’ Counsel has not acted as counsel for any other Person in connection with the transactions contemplated hereby Transactions and that no other party to this Agreement or Person has the status of a client of Xxxxx Sellers’ Counsel for conflict of interest or any other purposes as a result thereof. Purchaser The Parties hereby agrees agree that, in the event that a dispute arises in connection with the Transactions or the Transaction Agreements between Purchaser or any of its Affiliates (including after the ClosingSeller Parties and the Purchaser, Sellers’ Counsel may represent Lead Stockholder and the Company and any of its Subsidiaries) and any Equityholder Seller Parties or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate Persons may be directly adverse to Purchaser the Purchaser, any XXXX Entity, or any of its Affiliates (including, after the Closing, the Company or any of its Subsidiaries)their respective Affiliates, and even though Arnon Sellers’ Counsel may have represented the Company or any of its Subsidiaries in a matter substantially related to such dispute, and each of the Parties hereby waives on behalf of itself and its respective Affiliates, any conflict of interest in connection with such representation by Sellers’ Counsel.
(b) In additionEach of the Parties further agrees that, as to all communications made at among Sellers’ Counsel, any XXXX Entity, or any Seller Party prior to the Closing, and which constitute attorney-client confidences under applicable law, by representatives of the Company, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course of, and Closing that relate to the extent relating toTransactions, the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal Communications, or to the files of Arnon relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon and after the Closing, (i) the Equityholders (and not the Company or any of its Affiliates) shall be the sole holders of the attorney-client privilege, the expectation of client confidence and all other rights to any evidentiary privilege belong to Lead Stockholder (the “Privileged Communications”) and may only be controlled by Lead Stockholder and shall not pass to or be claimed by the Purchaser or the XXXX Entities. Each of the Parties other than Lead Stockholder hereby agrees, on behalf of itself and its respective Affiliates, that no such Person may use or rely on any of the Privileged Communications, whether located in the records or email server of the XXXX Entities, or otherwise, in any action against or involving any of the Parties after the Closing. Each of the Purchaser and the Company further agrees, on behalf of itself and its respective Affiliates, not to assert or waive any privilege with respect to such engagement and the Privileged Deal Communications, and none of the Company or any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications to prevent disclosure to such third-party of such Privileged Deal Communication, and Purchaser may not waive such privilege without providing no fewer than five (5) Business Days’ prior written notice to the Sellers’ Representative.
(c) Each of the parties hereto further agree that Xxxxx are third-party beneficiaries of this Section 12.13.Communication except with
Appears in 1 contract
Samples: Equity Purchase Agreement (Insight Enterprises Inc)
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained XxxxxPurchaser agrees, Xxxxxx-Xxxx (“Arnon”) to act as on its counsel in connection with the transactions contemplated hereby own behalf and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any on behalf of its Affiliates (including, after the Closing, any Group Company) and its and their respective managers, directors, members, partners, officers and employees, and each of their successors and assigns (all such parties, the Company “Purchaser Parties”), that Cravath, Swaine & Xxxxx LLP (“Cravath”) may serve as counsel to, and Deloitte & Touche LLP (“Deloitte”) may provide professional services to, Seller, on the one hand, and the Group Companies, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Transaction Agreements and the consummation of the Transactions (the “Current Representation”), and that, following consummation of the Transactions, Cravath may serve as counsel to, and Deloitte may provide professional services to, Seller or any of its Subsidiaries), and even though Arnon may have represented the Company Affiliates or any of its Subsidiaries their respective managers, directors, members, partners, officers or employees, in a matter substantially related each case, in connection with any dispute, litigation, claim, Proceeding or obligation arising out of or relating to this Agreement, the other Transaction Agreements or the Transactions (any such disputerepresentation, the “Post-Closing Representation”), notwithstanding such representation (or any continued representation) of the Group Companies, and Purchaser on behalf of itself and the Purchaser Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Purchaser acknowledges that the foregoing provision applies whether or not Cravath provides legal services to, and whether or not Deloitte provides professional services to, any Group Company after the Closing Date.
(b) In additionPurchaser, on behalf of itself and the Purchaser Parties, hereby irrevocably acknowledges and agrees that all communications made at between or among the Group Companies prior to the Closing, Seller and which constitute attorney-client confidences under applicable lawtheir counsel (including Cravath) made in connection with the negotiation, by representatives preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of the Company, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course of, and to the extent relating to, this Agreement or the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal CommunicationsTransactions, or to the files of Arnon any matter relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon are privileged communications between Seller and such counsel and the expectation of client confidence belongs to, and shall be controlled by, Seller (notwithstanding that any Group Company participated in, was party to or was furnished such communications nor that any Group Company is also a client of such counsel), and from and after the Closing, (i) the Equityholders (and not the neither Purchaser nor any Group Company nor any Person purporting to act on behalf of or through Purchaser or any Group Company, will seek to obtain the same by any process. From and after the Closing, Purchaser, on behalf of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement itself and the Privileged Deal CommunicationsPurchaser Parties, waives and none of the Company or will not assert any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications communication between Cravath, the Group Companies or Seller occurring prior to the Closing in connection with the Current Representation or any Post-Closing Representation, and the expectation of client confidence belongs to Seller and shall be controlled by Seller and shall not pass to or be claimed by Purchaser, any Group Company or any of their respective Affiliates. In connection with any dispute or Proceeding that may arise between Seller, on the one hand, and Purchaser or, after the Closing, any Group Company, on the other hand, Seller (and not Purchaser or any Group Company) will have the right to decide whether or not to waive any attorney-client privilege that may apply to any communications between Cravath and any Group Company that occurred before the Closing. Notwithstanding the foregoing, in the event a dispute arises between Purchaser or the Group Companies, on the one hand, and a Person other than Seller (or any Affiliate thereof), on the other hand, after the Closing, the Group Companies may assert the attorney-client privilege to prevent disclosure of confidential communications by Cravath to such third-party of such Privileged Deal CommunicationPerson; provided, and Purchaser however, that no Group Company may not waive such privilege without providing no fewer than five (5) Business Days’ the prior written notice to the Sellers’ Representativeconsent of Seller (which may not be unreasonably withheld, delayed or conditioned).
(c) Each of In the parties hereto further agree event that Xxxxx are thirdany third party commences Proceedings seeking to obtain from Purchaser or its Affiliates (including, after the Closing, any Group Company) attorney-party beneficiaries of this Section 12.13client communications involving Cravath in connection with the Current Representation, Purchaser shall promptly notify in writing Seller so as to permit Seller to participate in any such Proceedings.
Appears in 1 contract
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained XxxxxPurchaser agrees, Xxxxxx-Xxxx (“Arnon”) to act as on its counsel in connection with the transactions contemplated hereby own behalf and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any on behalf of its Affiliates (including, after the Closing, any Group Company) and its and their respective managers, directors, members, partners, officers and employees, and each of their successors and assigns (all such parties, the Company “Purchaser Parties”), that Cravath, Swaine & Xxxxx LLP (“Cravath”), Benesch, Friedlander, Xxxxxx & Xxxxxxx LLP and Xxxxx, Tarrant & Xxxxx, LLP (together, “Seller’s Counsel”) may serve as counsel to, and KPMG US LLC (“KPMG”) may provide professional services to, Seller, on the one hand, and the Group Companies, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Transaction Agreements and the consummation of the Transactions (the “Current Representation”), and that, following consummation of the Transactions, any Seller’s Counsel may serve as counsel to, and KPMG may provide professional services to, Seller or any of its Subsidiaries), and even though Arnon may have represented the Company Affiliates or any of its Subsidiaries their respective managers, directors, members, partners, officers or employees, in each case, in connection with any dispute, litigation, claim, Proceeding or obligation arising out of or relating to this Agreement, the other Transaction Agreements or the Transactions (any such representation, a matter substantially related “Post-Closing Representation”), notwithstanding the Current Representation. Purchaser on behalf of itself and the Purchaser Parties hereby consents to any such disputePost-Closing Representation and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Purchaser acknowledges that the foregoing provision applies whether or not any Seller’s Counsel provide legal services to, and whether or not KPMG provides professional services to, any Group Company after the Closing Date.
(b) In additionPurchaser, on behalf of itself and the Purchaser Parties, hereby irrevocably acknowledges and agrees that with respect to all communications made at between or among the Business Group Members prior to the Closing, Seller and which constitute its counsel (including Seller’s Counsel) made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement or the Transactions, or any matter relating to the foregoing, the expectation of client confidence and any attorney-client confidences under applicable law, by representatives of the Company, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course ofprivilege attaching thereto belongs to, and shall be controlled by, Seller (notwithstanding that any Business Group Members participated in, was party to the extent relating toor was furnished such communications nor that any Business Group Member is also a client of such counsel), the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal Communications, or to the files of Arnon relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon from and after the Closing, (i) the Equityholders (and not the neither Purchaser nor any Group Company nor any Person purporting to act on behalf of or through Purchaser or any Group Company, will seek to obtain the same by any process. From and after the Closing, Purchaser, on behalf of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement itself and the Privileged Deal CommunicationsPurchaser Parties, waives and none of the Company or will not assert any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications communication between any Seller’s Counsel, on the one hand, and the Group Companies or Seller, on the other hand, occurring prior to the Closing in connection with the Current Representation or any Post-Closing Representation, and the expectation of client confidence belongs to Seller and shall be controlled by Seller and shall not pass to or be claimed by Purchaser, any Group Company or any of their respective Affiliates. In connection with any dispute or Proceeding that may arise between Seller, on the one hand, and Purchaser or, after the Closing, any Group Company, on the other hand, Seller (and not Purchaser or any Group Company) will have the right to decide whether or not to waive any attorney-client privilege that may apply to any communications between any Seller’s Counsel, on the one hand, and any Group Company, on the other hand, that occurred before the Closing, except to the extent required to do so by a court order. Notwithstanding the foregoing, in the event a dispute arises between Purchaser or the Group Companies, on the one hand, and a Person other than Seller (or any Affiliate thereof), on the other hand, after the Closing, the Group Companies may assert the attorney-client privilege to prevent disclosure of confidential communications by any Seller’s Counsel to such third-party of such Privileged Deal CommunicationPerson; provided, and Purchaser however, that no Group Company may not waive such privilege without providing no fewer than five (5) Business Days’ the prior written notice to the Sellers’ Representativeconsent of Seller.
(c) Each of In the parties hereto further agree event that Xxxxx are thirdany third party commences Proceedings seeking to obtain from Purchaser or its Affiliates (including, after the Closing, any Group Company) attorney-party beneficiaries of this Section 12.13client communications involving any Seller’s Counsel in connection with the Current Representation, Purchaser shall promptly notify in writing Seller so as to permit Seller to participate in any such Proceedings.
Appears in 1 contract
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained XxxxxPurchaser agrees, Xxxxxx-Xxxx (“Arnon”) to act as on its counsel in connection with the transactions contemplated hereby own behalf and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any on behalf of its Affiliates (including, after the Closing, any Group Company) and its and their respective managers, directors, members, partners, officers and employees, and each of their successors and assigns (all such parties, the Company “Purchaser Parties”), that Xxxxxxx, Swaine & Xxxxx LLP (“Seller’s Counsel”) may serve as counsel to, and Deloitte LLP (“Deloitte”) may provide professional services to, Seller, on the one hand, and the Group Companies, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Transaction Agreements and the consummation of the Transactions (the “Current Representation”), and that, following consummation of the Transactions, Seller’s Counsel may serve as counsel to, and Deloitte may provide professional services to, Seller or any of its Subsidiaries), and even though Arnon may have represented the Company Affiliates or any of its Subsidiaries their respective managers, directors, members, partners, officers or employees, in a matter substantially related each case, in connection with any dispute, litigation, claim, Action or obligation arising out of or relating to this Agreement, the other Transaction Agreements or the Transactions (any such dispute.
representation, the “Post-Closing Representation”), notwithstanding such representation (bor any continued representation) In addition, all communications made at or of the Group Companies prior to the Closing, and which constitute attorney-client confidences under applicable law, by representatives Purchaser on behalf of itself and the Company, Purchaser Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Purchaser acknowledges that the Sellers’ Representative foregoing provision applies whether or the Equityholders or their respective Affiliates in the course ofnot any Seller’s Counsel provide legal services to, and whether or not Deloitte provides professional services to, any Group Company after the Closing Date.
(b) Purchaser, on behalf of itself and the Purchaser Parties, hereby irrevocably acknowledges and agrees that all communications between or among the Business Group Members prior to the extent Closing, Seller and their counsel (including Seller’s Counsel) 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 or the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal CommunicationsTransactions, or to the files of Arnon any matter relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon are privileged communications between Seller and such counsel and the expectation of client confidence belongs to, and shall be controlled by, Seller (notwithstanding that any Business Group Member participated in, was party to or was furnished such communications nor that any Business Group Member is also a client of such counsel), and from and after the Closing, (i) the Equityholders (and not the neither Purchaser nor any Group Company nor any Person purporting to act on behalf of or through Purchaser or any Group Company, will seek to obtain the same by any process. From and after the Closing, Purchaser, on behalf of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement itself and the Privileged Deal CommunicationsPurchaser Parties, waives and none of the Company or will not assert any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications communication between any Seller’s Counsel, the Group Companies or Seller occurring prior to the Closing in connection with the Current Representation or any Post-Closing Representation, and the expectation of client confidence belongs to Seller and shall be controlled by Seller and shall not pass to or be claimed by Purchaser, any Group Company or any of their respective Affiliates. In connection with any dispute or Action that may arise between Seller, on the one hand, and Purchaser or, after the Closing, any Group Company, on the other hand, Seller (and not Purchaser or any Group Company) will have the right to decide whether or not to waive any attorney-client privilege that may apply to any communications between any Seller’s Counsel and any Group Company that occurred before the Closing. Notwithstanding the foregoing, in the event a dispute arises between Purchaser or the Group Companies, on the one hand, and a Person other than Seller (or any Affiliate thereof), on the other hand, after the Closing, the Group Companies may assert the attorney-client privilege to prevent disclosure of confidential communications by any Seller’s Counsel to such third-party of such Privileged Deal CommunicationPerson; provided, and Purchaser however, that no Group Company may not waive such privilege without providing no fewer than five (5) Business Days’ the prior written notice to the Sellers’ Representativeconsent of Seller.
(c) Each of In the parties hereto further agree event that Xxxxx are thirdany third party commences Actions seeking to obtain from Purchaser or its Affiliates (including, after the Closing, any Group Company) attorney-party beneficiaries of this Section 12.13client communications involving any Seller’s Counsel in connection with the Current Representation, Purchaser shall promptly notify in writing Seller so as to permit Seller to participate in any such Actions.
Appears in 1 contract
Conflicts; Privilege. (ai) It is acknowledged by each The Buyer, on behalf of the parties hereto that the Company has retained Xxxxx, Xxxxxx-Xxxx (“Arnon”) to act as its counsel in connection with the transactions contemplated hereby itself and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any of its Affiliates (including, after the Closing, the Company) and the Sellers, on behalf of themselves and their respective Affiliates, acknowledge and agree that Xxxxxx, X’Xxxxxxx, XxXxxxxx & Xxxxxx LLP (“Company Counsel”) have acted as counsel for the Sellers and the Company in connection with this Agreement and the Transaction (the “Acquisition Engagement”), and in connection with the Acquisition Engagement, Company Counsel has not acted as counsel for the Buyer or any of its Subsidiaries), and even though Arnon may have represented the Company or any of its Subsidiaries in a matter substantially related to such disputeAffiliates.
(bii) In additionOnly the Sellers, the Company, and their respective Affiliates shall be considered clients of Company Counsel with respect to the Acquisition Engagement. The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) acknowledges and agrees that all confidential communications made at or between the Sellers, the Company, and their respective Affiliates, on the one hand, and Company Counsel, on the other hand, in connection with the Acquisition Engagement, which, immediately prior to the Closing, and which constitute was attorney-client confidences under applicable lawprivileged communications between the Sellers, by representatives of the Company, the Sellers’ Representative or the Equityholders or and their respective Affiliates in Affiliates, on the course ofone hand, and to Company Counsel, on the extent relating toother hand, the negotiation(such communications, documentation and consummation of the Transactions (collectively, the “Privileged Deal Protected Communications”) shall be deemed to belong solely to the Equityholders (Sellers and not the Company). Accordingly, neither and shall not pass to or be claimed, held, or used by the Buyer or the Company nor any of its Affiliates shall have access to any Privileged Deal Communications, upon or to the files of Arnon relating to the engagement described in this Section, even after the Closing has occurredClosing. Without limiting the generality of the foregoing, upon and after the Closing, (i) the Equityholders (and not the Company or any of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement and the Privileged Deal Communications, and none of the Company or any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon Company Counsel in respect of such engagement the Acquisition Engagement constitute property of the clientCompany, only the Equityholders Sellers and their respective Affiliates (and not other than the Company or any of its AffiliatesCompany) shall hold such property rights and (iiiii) Arnon Company Counsel shall have no duty whatsoever to reveal or disclose any such Privileged Deal Protected Communications or files to the Company or the Buyer by reason of any attorney-client relationship between Xxxxx Company Counsel and the CompanyCompany or otherwise; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding notwithstanding the foregoing, (x) Company Counsel shall not disclose any such Protected Communications or files to any third parties (other than representatives, accountants, and advisors of the parties agree Sellers and their Affiliates (other than the Company); provided, that Privileged Deal Communications do such representatives, accountants, and advisors are obligated to maintain the confidence of such Protected Communications) and (y) all rights, files, and information that are not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as related to the Privileged Deal CommunicationsAcquisition Engagement, any other pre-Closing privileged communications maintained by including matters that relate to the Company operation of the Company, shall be belong to the sole property Company. The Buyer, on behalf of Purchaser or itself and its Affiliates (including after the Closing, the Company) irrevocably waives any right it may have to discover or obtain Protected Communications, provided, however, the foregoing shall prohibit neither the Buyer nor the Company from seeking proper discovery of such Protected Communications nor the Sellers from asserting that such Protected Communications are not discoverable to the extent that attorney client privileges have attached thereto. If and to the extent that, at any time subsequent to Closing, the Buyer or any of its Subsidiaries). In additionAffiliates (including after the Closing, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert Company) has the right to waive any attorney-client privilege with respect to any Privileged Deal Communications Protected Communications, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) shall be entitled to waive such privilege only with the prior written consent of the Sellers (such consent not to be unreasonably withheld). In the event that a dispute arises between the Buyer or the Company, on the one hand, and a Person other than the Sellers, on the other hand, after the Closing, the Buyer and the Company, as applicable, may assert the attorney-client privilege to prevent disclosure of Protected Communications to such third-party of such Privileged Deal Communication, and Purchaser may not waive such privilege without providing no fewer than five (5) Business Days’ prior written notice to the Sellers’ Representativethird party.
(ciii) Each The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) acknowledges and agrees that Company Counsel has acted as counsel for the Sellers, the Company, and their respective Affiliates for several years and that the Sellers may reasonably anticipate that Company Counsel will continue to represent them or their Affiliates, individually or collectively, in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) expressly (i) consents to Company Counsel’s representation of the parties hereto further agree that Xxxxx Sellers or their Affiliates, individually or collectively, or any of their respective agents (if any of the foregoing Persons so desire) in any matter, including, without limitation, any post-Closing matter in which the interests of the Buyer and the Company, on the one hand, and the Sellers or any of their Affiliates, on the other hand, are thirdadverse, including any matter relating to the transactions contemplated hereby, and whether or not such matter is one in which Company Counsel may have previously advised the Sellers, the Company, or their respective Affiliates and (ii) consents to the disclosure by Company Counsel to the Sellers or their Affiliates of any information learned by Company Counsel prior to the date hereof in the course of its representation of the Sellers, the Company, or their respective Affiliates in regard to the Acquisition Engagement, whether or not such information is subject to attorney-party beneficiaries client privilege, attorney work product protection, or Company Counsel’s duty of this Section 12.13confidentiality.
(iv) From and after the Closing, the Company shall cease to have any attorney-client relationship with Company Counsel, unless and to the extent Company Counsel is expressly engaged in writing by the Company to represent the Company after the Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (XL Fleet Corp.)
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained XxxxxPurchaser agrees, Xxxxxx-Xxxx (“Arnon”) to act as on its counsel in connection with the transactions contemplated hereby own behalf and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any on behalf of its Affiliates (including, after the Closing, any Group Company) and its and their respective managers, directors, members, partners, officers and employees, and each of their successors and assigns (all such parties, the Company “Purchaser Parties”), that White & Case LLP and Steptoe LLP (together, “Seller’s Counsel”) may serve as counsel to, and PricewaterhouseCoopers LLP (“PwC”) may provide professional services to, Seller, on the one hand, and the Group Companies, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Transaction Agreements and the consummation of the Transactions (the “Current Representation”), and that, following consummation of the Transactions, any Seller’s Counsel may serve as counsel to, and PwC may provide professional services to, Seller or any of its Subsidiaries), and even though Arnon may have represented the Company Affiliates or any of its Subsidiaries their respective managers, directors, members, partners, officers or employees, in a matter substantially related each case, in connection with any dispute, litigation, claim, Proceeding or obligation arising out of or relating to this Agreement, the other Transaction Agreements or the Transactions (any such disputerepresentation, the “Post-Closing Representation”), notwithstanding the Current Representation, and Purchaser on behalf of itself and the Purchaser Parties hereby consents to any such Post-Closing Representation and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Purchaser acknowledges that the foregoing provision applies whether or not any Seller’s Counsel provide legal services to, and whether or not PwC provides professional services to, any Group Company after the Closing Date.
(b) In additionPurchaser, on behalf of itself and the Purchaser Parties, hereby irrevocably acknowledges and agrees that with respect to all communications made at between or among the Group Companies prior to the Closing, Seller and which constitute its counsel (including Seller’s Counsel) made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement or the Transactions, or any matter relating to the foregoing, the expectation of client confidence and any attorney-client confidences under applicable law, by representatives of the Company, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course ofprivilege attaching thereto belongs to, and shall be controlled by, Seller (notwithstanding that any Group Companies participated in, was party to the extent relating toor was furnished such communications nor that any Group Company is also a client of such counsel), the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal Communications, or to the files of Arnon relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon from and after the Closing, (i) the Equityholders (and not the neither Purchaser nor any Group Company nor any Person purporting to act on behalf of or through Purchaser or any Group Company, will seek to obtain the same by any process. From and after the Closing, Purchaser, on behalf of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement itself and the Privileged Deal CommunicationsPurchaser Parties, waives and none of the Company or will not assert any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications communication between Seller’s Counsel, on the one hand, the Group Companies or Seller, on the other hand, occurring prior to the Closing in connection with the Current Representation or any Post-Closing Representation, and the expectation of client confidence belongs to Seller and shall be controlled by Seller and shall not pass to or be claimed by Purchaser, any Group Company or any of their respective Affiliates. In connection with any dispute or Proceeding that may arise between Seller, on the one hand, and Purchaser or, after the Closing, any Group Company, on the other hand, Seller (and not Purchaser or any Group Company) will have the right to decide whether or not to waive any attorney-client privilege that may apply to any communications between any Seller’s Counsel, on the one hand, and any Group Company, on the other hand, that occurred before the Closing. Notwithstanding the foregoing, in the event a dispute arises between Purchaser or the Group Companies, on the one hand, and a Person other than Seller (or any Affiliate thereof), on the other hand, after the Closing, the Group Companies may assert the attorney-client privilege to prevent disclosure of confidential communications by any Seller’s Counsel to such third-party of such Privileged Deal CommunicationPerson; provided, and Purchaser however, that no Group Company may not waive such privilege without providing no fewer than five (5) Business Days’ the prior written notice to the Sellers’ Representativeconsent of Seller, which consent shall not be unreasonably conditioned, withheld or delayed.
(c) Each In the event that any third party commences Proceedings seeking to obtain from Purchaser or its Affiliates (including, after the Closing, any Group Company) attorney-client communications involving any Seller’s Counsel in connection with the Current Representation, Purchaser shall promptly notify in writing Seller so as to permit Seller to participate in any such Proceedings.
(d) For the avoidance of the parties hereto further agree that Xxxxx are third-party beneficiaries of doubt, no restriction set forth in this Section 12.139.07 shall prevent use of any communications, files or work product referenced herein in the possession of any Group Company that reflects or demonstrates any Knowledge and/or intent of Seller, any of its Affiliates, or any of their respective officers, directors or employees in connection with a dispute concerning (i) any actual or alleged breach of or inaccuracy in any representation or warranty contained in this Agreement that is qualified by the Knowledge of Seller or (ii) any claim based on Actual Fraud.
Appears in 1 contract
Conflicts; Privilege. (a) It is acknowledged by each of the parties hereto that the Company has retained XxxxxPurchaser agrees, Xxxxxx-Xxxx (“Arnon”) to act as on its counsel in connection with the transactions contemplated hereby own behalf and that Xxxxx has not acted as counsel for any other Person in connection with the transactions contemplated hereby and that no other party to this Agreement or Person has the status of a client of Xxxxx for conflict of interest or any other purposes as a result thereof. Purchaser hereby agrees that, in the event that a dispute arises between Purchaser or any of its Affiliates (including after the Closing, the Company and any of its Subsidiaries) and any Equityholder or any of their Affiliates (including, prior to the Closing, the Company or any of its Subsidiaries), Arnon, may represent such Equityholder or any such Affiliate (including the Sellers’ Representative) in such dispute even though the interests of such Equityholder or such Affiliate may be directly adverse to Purchaser or any on behalf of its Affiliates (including, after the Closing, the Company Transferred Company) and its and their respective managers, directors, members, partners, officers and employees, and each of their successors and assigns (all such parties, the “Purchaser Parties”), that Xxxxxxx, Swaine & Xxxxx LLP (“Seller’s Counsel”) may serve as counsel to, and Xxxxx & Young LLP (“EY”) may provide professional services to, Seller, on the one hand, and the Transferred Company, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Transaction Agreements and the consummation of the Transactions (the “Current Representation”), and that, following consummation of the Transactions, any Seller’s Counsel may serve as counsel to, and EY may provide professional services to, Seller or any of its Subsidiaries), and even though Arnon may have represented the Company Affiliates or any of its Subsidiaries their respective managers, directors, members, partners, officers or employees, in a matter substantially related each case, in connection with any dispute, litigation, claim, Proceeding or obligation arising out of or relating to this Agreement, the other Transaction Agreements or the Transactions (any such disputerepresentation, the “Post-Closing Representation”), notwithstanding such representation (or any continued representation) of the Transferred Company, and Purchaser on behalf of itself and the Purchaser Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Purchaser acknowledges that the foregoing provision applies whether or not any Seller’s Counsel provide legal services to, and whether or not EY provides professional services to, the Transferred Company after the Closing Date.
(b) In additionPurchaser, on behalf of itself and the Purchaser Parties, hereby irrevocably acknowledges and agrees that all communications made at between or among the Business Group Members prior to the Closing, Seller and which constitute attorney-client confidences under applicable lawtheir counsel (including Seller’s Counsel) made in connection with the negotiation, by representatives preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of the Company, the Sellers’ Representative or the Equityholders or their respective Affiliates in the course of, and to the extent relating to, this Agreement or the negotiation, documentation and consummation of the Transactions (collectively, the “Privileged Deal Communications”) belong solely to the Equityholders (and not the Company). Accordingly, neither the Company nor any of its Affiliates shall have access to any Privileged Deal CommunicationsTransactions, or to the files of Arnon any matter relating to the engagement described in this Section, even after the Closing has occurred. Without limiting the generality of the foregoing, upon are privileged communications between Seller and such counsel and the expectation of client confidence belongs to, and shall be controlled by, Seller (notwithstanding that any Business Group Member participated in, was party to or was furnished such communications nor that any Business Group Member is also a client of such counsel), and from and after the Closing, (i) neither Purchaser nor the Equityholders (Transferred Company nor any Person purporting to act on behalf of or through Purchaser or the Transferred Company, will seek to obtain the same by any process. From and not after the Company or any Closing, Purchaser, on behalf of its Affiliates) shall be the sole holders of the attorney-client privilege with respect to such engagement itself and the Privileged Deal CommunicationsPurchaser Parties, waives and none of the Company or will not assert any of its Affiliates shall be a holder thereof, (ii) to the extent that the files of Arnon in respect of such engagement constitute property of the client, only the Equityholders and their respective Affiliates (and not the Company or any of its Affiliates) shall hold such property rights and (iii) Arnon shall have no duty whatsoever to reveal or disclose any such Privileged Deal Communications by reason of any attorney-client relationship between Xxxxx and the Company; provided, however, that none of the Equityholders or their respective Affiliates may waive such privilege or exercise such property rights without the prior written consent of the Sellers’ Representative. Notwithstanding the foregoing, the parties agree that Privileged Deal Communications do not include communications that constitute evidence of fraud or intentional misrepresentation or intentional misconduct by the Company or any Equityholder. Except as to the Privileged Deal Communications, any other pre-Closing privileged communications maintained by the Company shall be the sole property of Purchaser or its Affiliates (including its Subsidiaries). In addition, in the event that a dispute arises between Purchaser or its Affiliate and a Person other than an Equityholder, Purchaser may assert the attorney-client privilege with respect to any Privileged Deal Communications communication between any Seller’s Counsel, the Transferred Company or Seller occurring prior to the Closing in connection with the Current Representation or any Post-Closing Representation, and the expectation of client confidence belongs to Seller and shall be controlled by Seller and shall not pass to or be claimed by Purchaser, the Transferred Company or any of their respective Affiliates. In connection with any dispute or Proceeding that may arise between Seller, on the one hand, and Purchaser or, after the Closing, the Transferred Company, on the other hand, Seller (and not Purchaser or the Transferred Company) will have the right to decide whether or not to waive any attorney-client privilege that may apply to any communications between any Seller’s Counsel and the Transferred Company that occurred before the Closing. Notwithstanding the foregoing, in the event a dispute arises between Purchaser or the Transferred Company, on the one hand, and a Person other than Seller (or any Affiliate thereof), on the other hand, after the Closing, the Transferred Company may assert the attorney-client privilege to prevent disclosure of confidential communications by any Seller’s Counsel to such third-party of such Privileged Deal CommunicationPerson; provided, and Purchaser however, that the Transferred Company may not waive such privilege without providing no fewer than five (5) Business Days’ the prior written notice to the Sellers’ Representativeconsent of Seller.
(c) Each of In the parties hereto further agree event that Xxxxx are thirdany third party commences Proceedings seeking to obtain from Purchaser or its Affiliates (including, after the Closing, the Transferred Company) attorney-party beneficiaries of this Section 12.13client communications involving any Seller’s Counsel in connection with the Current Representation, Purchaser shall promptly notify in writing Seller so as to permit Seller to participate in any such Proceedings.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Martin Marietta Materials Inc)
