Legal Representation; Attorney-Client Privilege. (a) Purchaser acknowledges that Xxxxxx & Xxxxxxx LLP (“Prior Company Counsel”) has, on or prior to the Closing Date, represented the Seller, the Company, and their respective Subsidiaries and other Affiliates, and their respective officers, employees and directors (each such Person, other than the member of the Company Group, a “Designated Person”) in one or more matters relating to this Agreement or any other agreements or transactions contemplated hereby (including any matter that may be related an Action arising under or related to this Agreement, the Transaction Documents or the Transactions) (each, an “Existing Representation”), and that, in the event of any post-Closing matters (x) relating to this Agreement, the Transaction Documents or the Transactions (including any matter that may be related to an Action related to this Agreement, the Transaction Documents or the Transactions) and (y) in which the Purchaser or any of its Subsidiaries (including the Company Group), on the one hand, and one or more Designated Persons, on the other hand, are or may be adverse to each other (each, a “Post-Closing Matters”), the Designated Persons reasonably anticipate that Prior Company Counsel will represent them in connection with such matters. Accordingly, each of the Purchaser and the Company hereby (i) waives and shall not assert, and agrees after the Closing to cause its Affiliates to waive and to not assert, any conflict of interest arising out of or relating to the representation by one or more Prior Company Counsel of one or more Designated Persons in connection with one or more Post-Closing Matters (the “Post-Closing Representations”), and (ii) agrees that, in the event that a Post-Closing Matter arises, Prior Company Counsel may represent one or more Designated Persons in Post-Closing Matter even though the interests of such Person(s) may be directly adverse to the Purchaser or any of its Subsidiaries (including the Company Group), and even though Prior Company Counsel may have represented the Company Group in a matter substantially related to such dispute. Without limiting the foregoing, each of the Purchaser and the Company (on behalf of itself and its Subsidiaries) consents to the disclosure by Prior Company Counsel, in connection with one or more Post-Closing Representations, to the Designated Persons of any information learned by Prior Company Counsel in the course of one or more Existing Representations, whether or not such information is subject to the attorney-client privilege of the Company or any of its Subsidiaries or Prior Company Counsel’s duty of confidentiality as to the Company or any of its Subsidiaries and whether or not such disclosure is made before or after the Closing. (b) Each of the Purchaser and the Company (on behalf of itself and its Subsidiaries) waives and shall not assert, and agrees after the Closing to cause its Subsidiaries to waive and to not assert, any attorney-client privilege, attorney work-product protection or expectation of client confidence with respect to any communication between any Prior Company Counsel, on the one hand, and any Designated Person or the Company or any of its Subsidiaries (collectively, the “Pre-Closing Designated Persons”), or any advice given to any Pre-Closing Designated Person by any Prior Company Counsel, occurring during one or more Existing Representations (collectively, “Pre-Closing Privileges”) in connection with any Post-Closing Representation, including in connection with a dispute between any Designated Person and one or more of the Purchaser, the Company and their respective Subsidiaries, it being the intention of the parties hereto that all rights to such Pre-Closing Privileges, and all rights to waiver or otherwise control such Pre-Closing Privilege, shall be retained by the Seller, and shall not pass to or be claimed or used by the Purchaser or the Company, except as provided in the last sentence of this Section 12.18(b). Furthermore, each of the Purchaser and the Company (on behalf of itself and its Subsidiaries) acknowledges and agrees that any advice given to or communication with any of the Designated Persons shall not be subject to any joint privilege (whether or not the Company or one more of its Subsidiaries also received such advice or communication) and shall be owned solely by such Designated Persons. Notwithstanding the foregoing, in the event that a dispute arises between the Purchaser or any member of the Company Group, on the one hand, and a third party other than a Designated Person, on the other hand, the Company shall (and shall cause its Subsidiaries to) assert the Pre-Closing Privileges on behalf of the Designated Persons to prevent disclosure of privileged materials to such third party; provided, however, that such privilege may be waived only with the prior written consent of the Seller. In addition, Purchaser agrees that, following the Closing Date, it would be impractical to remove all attorney-client communications created prior to the Closing Date from the records (including e-mails and other electronic files) of the Company Group. Accordingly, following the Closing, Purchaser will use commercially reasonable efforts not to and will use commercially reasonable efforts to cause each of its Affiliates (including the Company Group) not to, access or use such attorney-client communication remaining in the records of the Company Group after the Closing in a manner that would be adverse to the Seller or its Affiliates or which would waive attorney-client privilege.
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Legal Representation; Attorney-Client Privilege. (a) Purchaser acknowledges Each of the parties to this Agreement hereby agrees that Xxxxxx Fenwick & Xxxxxxx West LLP may serve as counsel to the Stockholder Representative and/or each and any Company Stockholder or Company Optionholder and such Company Stockholder’s or Company Optionholder’s respective Affiliates (individually and collectively, the “Prior Company CounselHolder Group”) has), on or prior to the Closing Dateone hand, represented the Seller, and the Company, on the other hand, in connection with the negotiation, preparation, execution and their respective Subsidiaries delivery of this Agreement and other Affiliates, and their respective officers, employees and directors (each such Person, other than the member consummation of the Company Group, a “Designated Person”) in one or more matters relating to this Agreement or any other agreements or transactions contemplated hereby (including any matter that may be related an Action arising under or related to this Agreement, the Transaction Documents or the Transactions) (each, an “Existing Representation”), and that, following consummation of the transactions contemplated hereby, Fenwick & West LLP (or any successor) may serve as counsel to the Holder Group or any director, member, partner, officer, employee or Affiliate of the Holder Group or the Stockholder Representative, in the event connection with any litigation, claim or obligation arising out of any post-Closing matters (x) or relating to this Agreement, the Transaction Documents Agreement or the Transactions (including transactions contemplated by this Agreement that is brought directly by any matter that may be related to an Action related to this Agreement, Indemnified Party against the Transaction Documents or the Transactions) and (y) in which the Purchaser Stockholder Representative or any member of its Subsidiaries the Holder Group (including the Company Group), on the one hand, and one or more Designated Persons, on the other hand, are or may be adverse to each other (eachany such representation, a “Post-Closing MattersRepresentation”)) notwithstanding the Existing Representation, the Designated Persons reasonably anticipate that Prior Company Counsel will represent them in connection with such matters. Accordingly, and each of the Purchaser parties hereto hereby consents thereto and waives any conflict of interest arising therefrom, and each of such parties shall cause any Affiliate thereof to consent to waive any conflict of interest arising from the Company hereby Existing Representation.
(ib) From and after the Closing, Parent waives and shall hereby agrees not to control or assert, and agrees after the Closing to cause its Affiliates (including the Surviving Corporation) to waive and to not assert, any conflict of interest arising out of control or relating to the representation by one or more Prior Company Counsel of one or more Designated Persons in connection with one or more Post-Closing Matters (the “Post-Closing Representations”), and (ii) agrees that, in the event that a Post-Closing Matter arises, Prior Company Counsel may represent one or more Designated Persons in Post-Closing Matter even though the interests of such Person(s) may be directly adverse to the Purchaser or any of its Subsidiaries (including the Company Group), and even though Prior Company Counsel may have represented the Company Group in a matter substantially related to such dispute. Without limiting the foregoing, each of the Purchaser and the Company (on behalf of itself and its Subsidiaries) consents to the disclosure by Prior Company Counsel, in connection with one or more Post-Closing Representations, to the Designated Persons of any information learned by Prior Company Counsel in the course of one or more Existing Representations, whether or not such information is subject to the attorney-client privilege of the Company or any of its Subsidiaries or Prior Company Counsel’s duty of confidentiality as to the Company or any of its Subsidiaries and whether or not such disclosure is made before or after the Closing.
(b) Each of the Purchaser and the Company (on behalf of itself and its Subsidiaries) waives and shall not assert, and agrees after the Closing to cause its Subsidiaries to waive and to not assert, any attorney-client privilege, attorney work-product protection or other similar privilege or protection applicable to, or any expectation of client confidence with respect to to, (i) any communication between any Prior Company Counsellegal counsel (including Fenwick & West LLP), on the one hand, and any Designated Person the Holder Group, on the other hand, that is protected by the attorney-client privilege between such parties, solely regarding the negotiation, execution, and delivery of this Agreement or the Company or transactions contemplated hereby in any of its Subsidiaries (collectively, the “PrePost-Closing Designated Persons”Representation (other than any Third Party Claim), or (ii) any other advice given to any Prethe Holder Group by Fenwick & West LLP, that is protected by the attorney-Closing Designated Person by any Prior Company Counselclient privilege between such parties, occurring during one or more the Existing Representations (collectively, “Pre-Closing Privileges”) Representation in connection with any Post-Closing Representation, including in connection with a dispute between any Designated Person the Holder Group and one or more of Parent and its Affiliates (the Purchaseritems listed in clauses (i) and (ii) collectively, the Company and their respective Subsidiaries“Specified Privileges”), it being the intention of the parties hereto that all rights that, notwithstanding anything to such Pre-Closing Privilegesthe contrary in Section 1.1 or Section 1.3 hereof or Section 259 of the DGCL, the right to waive, assert and all rights to waiver or otherwise control such PreSpecified Privileges in any Post-Closing Privilege, Representation (other than any Third Party Claim) shall be (and are hereby) retained by by, and vested solely in, the SellerHolder Group, and shall not pass to or be claimed or used by the Purchaser or the CompanyParent, except as provided in the last sentence of this Section 12.18(b8.11(b). Furthermore, each of the Purchaser and the Company Parent (on behalf of itself and its SubsidiariesAffiliates) acknowledges and agrees that any advice given to or communication with any of the Designated Persons Holder Group shall not be subject to any joint privilege (whether or not the Company or one more of its Subsidiaries also received such advice or communication) and shall be owned solely by the Holder Group. All such Designated Persons. Notwithstanding Specified Privileges shall be deemed to belong solely to the foregoing, in the event that a dispute arises between the Purchaser or any member of the Company Group, on the one hand, and a third party other than a Designated Person, on the other hand, the Company shall Stockholder Representative (and shall cause its Subsidiaries to) assert the Pre-Closing Privileges on behalf of the Designated Persons to prevent disclosure of privileged materials to such third party; provided, however, that such privilege may be waived only with the prior written consent of the Seller. In addition, Purchaser agrees that, following the Closing Date, it would be impractical to remove all attorney-client communications created prior to the Closing Date from the records (including e-mails and other electronic files) of the Company Holder Group. Accordingly, following the Closing, Purchaser will use commercially reasonable efforts not to and will use commercially reasonable efforts to cause each of its Affiliates (including the Company Group) not to, access or use such attorney-client communication remaining in the records of the Company Group after the Closing in a manner that would be adverse to the Seller or its Affiliates or which would waive attorney-client privilege).
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
Legal Representation; Attorney-Client Privilege. (a) Purchaser acknowledges It is acknowledged by each of the Parties that Xxxxxx & Xxxxxxx Locke Lord LLP (“Prior Company Summit Counsel”) has, on or prior to represented Summit and its Subsidiaries in connection with the Closing Date, represented negotiation of this Agreement and the Seller, the CompanyTransaction Documents. Tall Oak Parent agrees, and their respective Subsidiaries and other Affiliatesshall cause its Affiliates to agree, and their respective officersthat, employees and directors (each such Person, other than the member following consummation of the Company Group, a “Designated Person”) in one or more matters relating to this Agreement or any other agreements or transactions contemplated hereby (including any matter that may be related an Action arising under or related to by this Agreement, such representation and any prior representation of Summit and its Subsidiaries by Summit Counsel shall not preclude Summit Counsel from serving as counsel to Summit or its Subsidiaries or any of their respective Affiliates or any director, manager, member, equityholder, partner, officer or employee of the Transaction Documents or the Transactions) (each, an “Existing Representation”), and thatforegoing, in the event of any post-Closing matters (x) relating to this Agreement, the Transaction Documents or the Transactions (including connection with any matter that may be related to an Action related to this Agreement, the Transaction Documents or the Transactions) and (y) in which the Purchaser interests of Summit or any of its Subsidiaries (including the Company Group)Affiliates, on the one hand, and one Tailwater, Tall Oak Parent or more Designated Personsany of their respective Affiliates, on the other hand, are adverse, including any litigation, Claim or may be adverse to each other (each, a “Post-Closing Matters”), the Designated Persons reasonably anticipate that Prior Company Counsel will represent them in connection with such matters. Accordingly, each of the Purchaser and the Company hereby (i) waives and shall not assert, and agrees after the Closing to cause its Affiliates to waive and to not assert, any conflict of interest obligation arising out of or relating to this Agreement or the representation transactions contemplated by one this Agreement or more Prior Company Counsel of one or more Designated Persons in connection with one or more Post-Closing Matters (the “Post-Closing Representations”), and (ii) agrees that, in the event that a Post-Closing Matter arises, Prior Company Counsel may represent one or more Designated Persons in Post-Closing Matter even though the interests of such Person(s) may be directly adverse to the Purchaser or any of its Subsidiaries (including the Company Group), and even though Prior Company Counsel may have represented the Company Group in a matter substantially related to such dispute. Without limiting the foregoing, each of the Purchaser and the Company (on behalf of itself and its Subsidiaries) consents to the disclosure by Prior Company Counsel, in connection with one or more Post-Closing Representations, to the Designated Persons of any information learned by Prior Company Counsel in the course of one or more Existing Representations, whether or not such information is subject to the attorney-client privilege of the Company or any of its Subsidiaries or Prior Company Counsel’s duty of confidentiality as to the Company or any of its Subsidiaries and whether or not such disclosure is made before or after the ClosingTransaction Documents.
(b) Tall Oak Parent shall not, and shall cause their Affiliates not to, seek to or have Summit Counsel disqualified from representing Summit or its Subsidiaries or any of their respective Affiliates related to this Agreement based upon the prior representation of Summit and its Subsidiaries by Summit Counsel. Each of the Purchaser Parties consents thereto and the Company (on behalf waives any conflict of itself and its Subsidiaries) waives and shall not assertinterest arising from such prior representation, and agrees after the Closing to each of such Parties shall cause its Subsidiaries to waive and to not assert, any attorney-client privilege, attorney work-product protection or expectation of client confidence with respect to any communication between any Prior Company Counsel, on the one hand, and any Designated Person or the Company or any of its Subsidiaries (collectivelyAffiliates to consent to waive any conflict of interest arising from such representation. Each of the Parties acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the “Pre-Closing Designated Persons”), Parties have consulted with counsel or any advice given to any Pre-Closing Designated Person by any Prior Company Counsel, occurring during one or more Existing Representations (collectively, “Pre-Closing Privileges”) have been advised they should do so in connection with any Post-Closing Representationherewith. The covenants, including consent and waiver contained in connection with a dispute between any Designated Person and one or more of the Purchaser, the Company and their respective Subsidiaries, it being the intention of the parties hereto that all rights to such Pre-Closing Privileges, and all rights to waiver or otherwise control such Pre-Closing Privilege, shall be retained by the Seller, and shall not pass to or be claimed or used by the Purchaser or the Company, except as provided in the last sentence of this Section 12.18(b). Furthermore, each of the Purchaser and the Company (on behalf of itself and its Subsidiaries) acknowledges and agrees that any advice given to or communication with any of the Designated Persons 9.9 shall not be subject to deemed exclusive of any joint privilege (whether or not the Company or one more of its Subsidiaries also received such advice or communication) and shall be owned solely by such Designated Persons. Notwithstanding the foregoing, in the event that a dispute arises between the Purchaser or any member of the Company Group, on the one hand, and a third party other than a Designated Person, on the other hand, the Company shall (and shall cause its Subsidiaries to) assert the Pre-Closing Privileges on behalf of the Designated Persons to prevent disclosure of privileged materials to such third party; provided, however, that such privilege may be waived only with the prior written consent of the Seller. In addition, Purchaser agrees that, following the Closing Date, it would be impractical to remove all attorney-client communications created prior to the Closing Date from the records (including e-mails and other electronic files) of the Company Group. Accordingly, following the Closing, Purchaser will use commercially reasonable efforts not to and will use commercially reasonable efforts to cause each of its Affiliates (including the Company Group) not to, access or use such attorney-client communication remaining in the records of the Company Group after the Closing in a manner that would be adverse to the Seller or its Affiliates or which would waive attorney-client privilege.other
Appears in 1 contract
Samples: Business Contribution Agreement (Summit Midstream Corp)
Legal Representation; Attorney-Client Privilege. (a) Purchaser acknowledges It is acknowledged by each of the parties hereto that Xxxxxx & Xxxxxxx the Stockholders’ Representative or the Company Equityholders may retain Gxxxxxx Procter LLP (“Prior Company Counsel”) has, on or prior to act as its counsel in connection with the Closing Date, represented the Seller, the Company, and their respective Subsidiaries and other Affiliates, and their respective officers, employees and directors (each such Person, other than the member of the Company Group, a “Designated Person”) in one or more matters relating to this Agreement or any other agreements or transactions contemplated hereby. Parent and Merger Sub hereby (including any matter that may be related an Action arising under or related to this Agreement, the Transaction Documents or the Transactions) (each, an “Existing Representation”), and agree that, in the event of any post-that a dispute arises after the Closing matters (x) relating to this Agreement, the Transaction Documents or the Transactions (including any matter that may be related to an Action related to this Agreement, the Transaction Documents or the Transactions) between Parent and (y) in which the Purchaser or any of its Subsidiaries (including the Company Group)Merger Sub, on the one hand, and one the Stockholders’ Representative or more Designated Personsthe Company Equityholders, on the other hand, are or may be adverse to each other (each, a “Post-Closing Matters”), the Designated Persons reasonably anticipate that Prior Company Counsel will represent them in connection with such matters. Accordingly, each of the Purchaser and the Company hereby (i) waives and shall not assert, and agrees after the Closing to cause its Affiliates to waive and to not assert, any conflict of interest arising out of or relating to the representation by one or more Prior Company Counsel of one or more Designated Persons in connection with one or more Post-Closing Matters (the “Post-Closing Representations”), and (ii) agrees that, in the event that a Post-Closing Matter arises, Prior Company Counsel may represent one the Stockholders’ Representative or more Designated Persons the Company Equityholders in Post-Closing Matter such dispute even though the interests of such Person(s) the Stockholders’ Representative or the Company Equityholders may be directly adverse to Parent, Merger Sub or the Purchaser or any of its Subsidiaries (including the Company Group)Company, and even though Prior Company Counsel may have represented the Company Group in a matter substantially related to such dispute, or may be handling ongoing matters for Parent, Merger Sub or the Company. Without limiting Parent and Merger Sub further agree that, as to all communications among Counsel, the foregoingCompany, each of the Purchaser Stockholders’ Representative and the Company (on behalf of itself and its Subsidiaries) consents Equityholders with respect to the disclosure consideration, preparation, negotiation, documentation and consummation of the transactions contemplated by Prior Company Counselthis Agreement (the “Deal Communications”), in connection with one or more Post-Closing Representations, to the Designated Persons of any information learned by Prior Company Counsel in the course of one or more Existing Representations, whether or not such information is subject to the attorney-client privilege of the Company or any of its Subsidiaries or Prior Company Counsel’s duty of confidentiality as belongs to the Company or any of its Subsidiaries and whether or not such disclosure is made before or after the Closing.
(b) Each of the Purchaser and the Company (on behalf of itself and its Subsidiaries) waives and shall not assert, and agrees after the Closing to cause its Subsidiaries to waive and to not assert, any attorney-client privilege, attorney work-product protection or expectation of client confidence with respect to any communication between any Prior Company Counsel, on the one hand, and any Designated Person Stockholders’ Representative or the Company Equityholders (as applicable) and may be controlled by the Stockholders’ Representative or any of its Subsidiaries (collectively, the “Pre-Closing Designated Persons”), or any advice given to any Pre-Closing Designated Person by any Prior Company Counsel, occurring during one or more Existing Representations (collectively, “Pre-Closing Privileges”) in connection with any Post-Closing Representation, including in connection with a dispute between any Designated Person and one or more of the Purchaser, the Company and their respective Subsidiaries, it being the intention of the parties hereto that all rights to such Pre-Closing Privileges, and all rights to waiver or otherwise control such Pre-Closing Privilege, shall be retained by the Seller, Equityholders and shall not pass to or be claimed or used by the Purchaser Parent, Merger Sub or the Company, except as provided in the last sentence of this Section 12.18(b). Furthermore, each of the Purchaser and the Company (on behalf of itself and its Subsidiaries) acknowledges and agrees that any advice given to or communication with any of the Designated Persons shall not be subject to any joint privilege (whether or not the Company or one more of its Subsidiaries also received such advice or communication) and shall be owned solely by such Designated Persons. Notwithstanding the foregoing, Deal Communications shall expressly exclude any such communications, information or documentation that (i) were in the possession of Parent, Merger Sub or their respective Representatives prior to the date of this Agreement, (ii) were disclosed to Parent or its Representatives by the Company or its Representatives prior to the Effective Time, and/or (iii) are not and were not made in connection with the consideration, preparation, negotiation, documentation and consummation of the transactions contemplated by this Agreement, including legal advice concerning a matter related to the Company’s business which was not given in connection with the transactions contemplated by this Agreement, irrespective of whether the Company disclosed such matter in the this Agreement or the Disclosure Schedules. In the event that a dispute arises between the Purchaser Parent, Merger Sub or any member of the Company Group, on the one hand, and a third party other than a Designated Person, on party to this Agreement after the other handClosing, the Company shall (and shall cause its Subsidiaries to) may assert the Preattorney-Closing Privileges on behalf of the Designated Persons client privilege to prevent disclosure of privileged materials Deal Communications by Counsel to such third party; provided, however, that the Company may not waive such privilege may be waived only with without the prior written consent of the SellerStockholders’ Representative. In additionthe event that a dispute arises between Parent, Purchaser agrees thatMerger Sub or the Company and a third party other than a party to this Agreement after the Closing, following the Closing Date, it would be impractical to remove all Company may assert the attorney-client communications created privilege to prevent disclosure of Deal Communications by Counsel to such third party; provided, however, that the Company may not waive such privilege without the prior to the Closing Date from the records (including e-mails and other electronic files) written consent of the Company Group. Accordingly, following the Closing, Purchaser will use commercially reasonable efforts not to and will use commercially reasonable efforts to cause each of its Affiliates (including the Company Group) not to, access or use such attorney-client communication remaining in the records of the Company Group after the Closing in a manner that would be adverse to the Seller or its Affiliates or which would waive attorney-client privilegeStockholders’ Representative.
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