Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute. (b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise. (c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Consolidated Edison Inc), Purchase and Sale Agreement (Crestwood Equity Partners LP)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree Purchaser further agrees that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications between and among all counsel for Seller, Seller CounselParent, the First Closing Acquired Transferred Entities and/or their respective Affiliates (with respect to communications prior including Milbank LLP), and Seller, Seller Parent, the Transferred Entities and/or their respective Affiliates that relate in any way to the First Closing)transactions contemplated by or in connection with this Agreement (collectively, the Second Closing Acquired Entities (with respect to communications prior to the Second Closing“Privileged Communications”), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely with respect to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Privileged Communications belongs to Seller and the Second Closing Acquired Entities after the Second Closing), Seller Parent and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Seller and the Second Closing Acquired Entities after the Second Closing), Seller Parent and shall will not pass to or be claimed by BuyerPurchaser or any of its Affiliates (including, following the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities Transferred Entities). The Privileged Communications are the property of Seller and Seller Parent, and from and after the Second Closing none of Purchaser, its Affiliates (including, following the Closing, the Transferred Entities), or any Person purporting to act on behalf of or through Purchaser or such Affiliates will seek to obtain such Privileged Communications, whether by seeking a waiver of the attorney-client privilege or through other means. Purchaser, and its Affiliates (including, following the Closing, the Transferred Entities) together with any of their respective Affiliates, successors or assigns further agree that no such party may use or rely on any of the Privileged Communications in any Action against or involving any of Seller, Seller Parent or any of their respective Affiliates after the Closing. The Privileged Communications may be used by Seller, Seller Parent and/or any of their respective Affiliates in connection with any dispute that relates to the transactions contemplated by or in connection with this Agreement. Notwithstanding the foregoing, in the event that a dispute arises between Purchaser or any of its Affiliates and a third party (other than a party to this Agreement or any of their respective Affiliates) after the Closing, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer Purchaser and its Affiliates shall not have access to any such communications, or to may assert the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior prevent disclosure of Privileged Communications by counsel to such Applicable Closingthird party, Buyer, on behalf of itself and provided that neither Purchaser nor its Affiliates (including including, following the First Closing Acquired Entities after Closing, the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Transferred Entities) may waive such privilege only with without the prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSeller and Seller Parent.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ambipar Emergency Response), Purchase and Sale Agreement (Ambipar Emergency Response)
Legal Representation. (a) It is acknowledged by Buyer and the Companies hereby agree, on their own behalf and on behalf of their directors, members, partners, officers and Affiliates, and each of the Parties that the First Closing Acquired Entitiestheir successors and assigns (all such parties, the Second Closing Acquired Entities and “Waiving Parties”), that (i) Dechert LLP may represent the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing individually and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyercollectively, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing“Seller Group”), on the one hand, and the Sellers and their respective AffiliatesCompanies, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputesthe negotiation, lawsuitspreparation, actions, proceedings, investigations or other matters, including any dispute between Buyerexecution and delivery of this Agreement, the First Closing Acquired Entities after other agreements contemplated hereby and the First Closingconsummation of the transactions contemplated hereby and thereby (such representation, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing“Current Representation”), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel Dechert LLP (or any successor) may disclose to the Sellers or their respective Affiliates represent Select, any information learned by Seller Counsel in the course of its representation and all members of the SellersSeller Group (other than the Companies) or any director, member, partner, officer, employee or Affiliate of the Seller Group (other than the Companies) in connection with any dispute, litigation, claim, proceeding or obligation arising out of or relating to this Agreement, any agreements contemplated by this Agreement or the transactions contemplated hereby or thereby (any such representation, the First “Post-Closing Acquired EntitiesRepresentation”) notwithstanding such representation (or any continued representation) of the Companies, and each of Buyer and the Second Closing Acquired Entities Companies on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or their respective Affiliates, any objection arising therefrom or relating thereto. Buyer and the Companies acknowledge that the foregoing provision applies whether or not such information is subject Dechert LLP provides legal services to attorney-client privilege, attorney work product protection, the Companies after the Closing Date. Each of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access the Companies, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications between the Seller Group and their counsel, including Dechert LLP, 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, any agreements contemplated by this Agreement or the transactions contemplated hereby or thereby, or any matter relating to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon are privileged communications between the Seller Group and after each Applicable Closing, (A) to the extent that files such counsel and none of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer Companies or any of its Affiliates (including the First Closing Acquired Entities Waiving Parties or any Person purporting to act on behalf of or through Buyer, the Companies or any of the Waiving Parties, will seek to obtain the same by any process. From and after the First Closing Closing, each of Buyer and the Second Closing Acquired Entities after Companies, on behalf of itself and the Second Closing) shall have the right to Waiving Parties, waives and will not assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities Dechert LLP and the Second Closing Acquired Entities (as applicable) Companies or their respective Affiliates, and any Person representing them, that occurred at in the Seller Group occurring during the Current Representation in connection with any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Post-Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedRepresentation.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Select Medical Corp)
Legal Representation. (a) It is acknowledged by Each of the parties hereby agrees that each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted Seller’s Solicitors may serve as counsel for any other Party in connection with to the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing individually and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyercollectively, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing“Seller Group”), on the one hand, and the Sellers and their respective AffiliatesCompany, on the other hand, Seller Counsel may represent any or all in connection with the negotiation, preparation, execution and delivery of this agreement and the consummation of the Sellers transactions contemplated hereby, and their Affiliates in such disputethat, even though following Completion and the interests other transactions contemplated by the Transaction Documents, each of Seller’s Solicitors may serve as counsel to any member of the Sellers and their Affiliates may be directly adverse to BuyerSeller Group or any director, partner, officer, employee or Affiliate of any member of the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, Group in connection with any future disputeslitigation, lawsuits, actions, proceedings, investigations claim or other matters, including obligation arising out of or relating to this agreement or the transactions contemplated by the Transaction Documents notwithstanding such representation and each of the parties hereby consents thereto and waives any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any conflict of its or their respective Affiliates, on the one handinterest arising therefrom, and each of the Sellers or parties shall procure any Affiliate thereof to consent to waive any conflict of their respective Affiliatesinterest arising from such representation. The Purchaser agrees that, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counseleach of Seller’s Solicitors, the First Closing Acquired Entities (with respect to communications prior Company, the Seller and their respective Affiliates that relate to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliatestransactions contemplated by this agreement, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Seller and the Second Closing Acquired Entities after the Second Closing)its Affiliates, as applicable, and may be controlled by the Sellers or their Seller and its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers Purchaser or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentialityCompany. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of Notwithstanding the foregoing, upon in the event that a dispute arises between the Purchaser or the Company, on the one hand, and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates a third party (other than any member of the First Closing Acquired Entities Seller Group), on the other hand, after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to BuyerCompletion, the First Closing Acquired Entities or Company may assert the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesprevent disclosure of confidential communications by each of Seller’s Solicitors to such third party; provided, and any Person representing themhowever, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Company may not waive such privilege only with without the prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSeller. This clause 26 is for the benefit of the Seller Group and such persons are intended third party beneficiaries of this clause 26.
Appears in 2 contracts
Samples: Sale and Purchase Agreement, Sale and Purchase Agreement (Xl Group PLC)
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company) acknowledges and agrees that Xxxxxx, Xxxx & Xxxxxxxx LLP (“Xxxxxx Xxxx”) has acted as counsel for the Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxxxx Xxxx has not acted as counsel for any other Party Person, including the Buyer.
(b) Only the Seller, the Company and their respective Affiliates shall be considered clients of Xxxxxx Xxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Company) acknowledges and agrees that any disputeall confidential communications between the Seller, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxxxx Xxxx, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the SellersAcquisition Engagement, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Seller Counsel’s duty and its Affiliates (other than the Company), and not the Company, and shall not pass to or be claimed, held, or used by the Buyer or the Company upon or after the Closing; provided, however, that in the event a dispute arises between the Buyer or any of confidentialityits Affiliates, the Company, and a third party other than a Party to this Agreement or any Affiliate of a Party to this Agreement after the Closing, the Buyer or its Affiliates or the Company may assert the attorney-client privilege to prevent disclosure of confidential information by Xxxxxx Xxxx to such third party. Accordingly, the Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occursXxxxxx Xxxx relating to the Acquisition Engagement. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ai) to the extent that files of Seller Counsel Xxxxxx Xxxx in respect of the Acquisition Engagement constitute property of the client, only the Sellers Seller and their respective its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (Bii) Seller Counsel Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Company or the Second Closing Acquired Entities Buyer by reason of any attorney-client relationship between Seller Counsel Xxxxxx Xxxx and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or otherwise.
; provided, however, that notwithstanding the foregoing, Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (c) other than representatives, accountants and advisors of the Seller and its Affiliates; provided, that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications). If and to the extentextent that, at any time subsequent to each Applicable Closing, the Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and Closing, the Second Closing Acquired Entities after the Second ClosingCompany) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or their respective Affiliates, its Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, the Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and Closing, the Second Closing Acquired Entities after the Second Closing), Company) shall be entitled to waive such privilege only with the prior written consent of the Sellers, Seller (such consent not to be unreasonably withheld).
(c) The Buyer, conditioned on behalf of itself and its Affiliates (including after the Closing, the Company) acknowledges and agrees that Xxxxxx Xxxx has acted as counsel for the Seller, the Company and their respective Affiliates for several years and that the Seller reasonably anticipates that Xxxxxx Xxxx will continue to represent the Seller and its Affiliates in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) expressly consents to Xxxxxx Xxxx’x representation of the Seller and/or its Affiliates and/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 Seller or delayedany of its Affiliates, on the other hand, are adverse, including any matter relating to the transactions contemplated by this Agreement, and whether or not such matter is one in which Xxxxxx Xxxx may have previously advised the Seller, the Company or their respective Affiliates.
(d) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Company or its Affiliates by Xxxxxx Xxxx in connection with this Agreement or the transactions contemplated hereby.
(e) From and after the Closing, the Company shall cease to have any attorney-client relationship with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is expressly engaged in writing by the Company to represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Seller and/or any of its Affiliates or (ii) the Seller and/or any such Affiliate, as applicable, consent in writing to such engagement.
(f) The Seller, the Company and the Buyer consent to the arrangements in this Section 10.15 and waive any actual or potential conflict of interest that may be involved in connection with any representation by Xxxxxx Xxxx permitted hereunder.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Ducommun Inc /De/)
Legal Representation. (a) It is acknowledged by each The Parties, on behalf of the Parties that the First Closing Acquired Entitiestheir respective successors and assigns, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that a dispute with respect to this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby arises after the Closing between or among (x) the Sellers, the Company Entities and any dispute, or any other matter in which the interests of Sellers and their respective Affiliatesdirectors, members, partners, officers, employees or Affiliates (collectively, the “Seller Group”), on the one hand, and Buyer and its (y) Purchaser, the Sponsor, the shareholders or holders of other equity interests of Purchaser or the Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (including collectively, the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing“Purchaser Group”), on the other hand, are adverseany legal counsel, arises after including Pxxxxxx Juvigny Marpeau & Associés and Winston & Sxxxxx LLP, that represented the Applicable Sellers prior to the Closing between Buyermay represent any member of the Seller Group in such dispute even though the interests of such Persons may be directly adverse to Purchaser, and even though such counsel may have represented the First Sellers in a matter substantially related to such dispute, or may be handling ongoing matters for the Sellers, and further agree that, as to all legally privileged communications prior to the Closing Acquired Entities after (made in connection with the First Closing negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the Second Closing Acquired Entities after transactions contemplated hereby or thereby) between or among the Second ClosingCompany and/or any member of the Seller Group, on the one hand, and Pxxxxxx Xxxxxxx Marpeau & Associés and Winston & Sxxxxx LLP, on the Sellers other hand (the “Pxxxxxx & Winston Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the Seller Group after the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with Purchaser under a common interest agreement shall remain the privileged communications or information of the Company. The Parties, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on the other hand, Seller Counsel may represent any or all of the Sellers and Pxxxxxx & Wxxxxxx Privileged Communications, whether located in the records or email server of Purchaser, the Company or their Affiliates respective Subsidiaries, in such dispute, even though the interests any Action against or involving any of the Sellers and their Affiliates may be directly adverse to Buyer, Parties after the First Closing Acquired Entities or the Second Closing Acquired EntitiesClosing, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or Parties agree not to assert that any privilege has been waived as to the Second Closing Acquired Entities in any matter substantially related to such disputePxxxxxx & Wxxxxxx Privileged Communications, by virtue of the Transactions.
(b) The Sellers and Buyer and Parties, on behalf of their respective Affiliatessuccessors and assigns, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and hereby agree that, in connection the event a dispute with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyerrespect to this Agreement, the First Closing Acquired Entities Ancillary Agreements or the transactions contemplated hereby or thereby arises after the First Closing, Closing between or among (x) any member of the Second Closing Acquired Entities after the Second Closing, or any of its or their respective AffiliatesSeller Group, on the one hand, and (y) any member of the Sellers Purchaser Group, on the other hand, any legal counsel, including Proskauer Rose LLP, that represented Purchaser and the Sponsor prior to the Closing may represent any member of the Purchaser Group in such dispute even though the interests of such Persons may be directly adverse to the Company, and even though such counsel may have represented Purchaser in a matter substantially related to such dispute, or may be handling ongoing matters for Purchaser, and further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the transactions contemplated hereby or thereby) between or among Purchaser and/or any member of the Purchaser Group, on the one hand, and Proskauer Rose LLP, on the other hand (the “Proskauer Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the Purchaser Group after the Closing. Notwithstanding the foregoing, any privileged communications or information shared by Purchaser prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of Purchaser. The Parties, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the other handProskauer Privileged Communications, whether located in the records or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counselemail server of Purchaser, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers Company or their respective Affiliates Subsidiaries, in any information learned by Seller Counsel in the course of its representation Action against or involving any of the Sellersparties after the Closing, and the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or Parties agree not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to assert that any such communications, or privilege has been waived as to the files of Seller CounselProskauer Privileged Communications, whether or not any Applicable Closing occurs. Without limiting the generality by virtue of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseTransactions.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Business Combination Agreement (Goal Acquisitions Corp.), Business Combination Agreement (Goal Acquisitions Corp.)
Legal Representation. (a) It is acknowledged by each of Purchaser, the Parties Company, and Seller acknowledge and agree that the First Closing Acquired Entities, Law Firm has represented Seller or the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company in connection with the Transactionsnegotiation, preparation, execution, delivery, and performance of this Agreement and the Related Documents and the consummation of the Transactions and has represented the Company and Seller in the past, and that Seller, its Affiliates, and their respective partners, officers, directors, employees, and Representatives (the “Seller Counsel has not acted as counsel for any other Party Group Members”) have a reasonable expectation that the Law Firm will represent them in connection with the Transactions, and that none of the other Parties has the status of a client of any Related Claim involving any Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective AffiliatesGroup Member, on the one hand, and Buyer Purchaser, the Company, or any of their respective Affiliates and its Affiliates Representatives (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing“Purchaser Group Members”), on the other hand, are adversearising under this Agreement, arises after the Applicable Related Documents, or the Transactions. Purchaser hereby, on behalf of itself and the Company and the other Purchaser Group Members, irrevocably: (a) acknowledges and agrees that any attorney-client privilege, solicitor-client privilege, work product, or other attorney-client or solicitor-client confidential information arising from communications prior to the Closing between Buyerthe Company (including any one or more officers, directors, employees, or members of the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingCompany), on the one hand, and the Sellers and their respective AffiliatesLaw Firm, on the other hand, Seller Counsel may represent any that relate primarily to this Agreement or all other Transactions and not the business of the Sellers Company generally (“Attorney-Client Information”), are not included in the property, rights, privileges, powers, franchises, and their Affiliates other interests that are possessed by or vested in the Company, that the Company’s rights to such disputeAttorney-Client Information shall be deemed property of, even though and controlled solely by, Seller for the interests benefit and on behalf of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired EntitiesSeller Group Members, and even though Seller Counsel formerly may that no Purchaser Group Member shall have represented the First Closing Acquired Entities any right to waive any attorney-client privilege, solicitor-client privilege, or the Second Closing Acquired Entities in any matter substantially related other right to confidentiality with respect to such dispute.
Attorney-Client Information at any time after the Closing; (b) The Sellers acknowledges and Buyer and their respective Affiliates, including with respect agrees that the Seller Group Members shall have the right to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closingretain, or cause the Law Firm to retain, any such documentation or information in the possession of its the Law Firm or their respective Affiliates, on such Seller Group Members at the one hand, and Closing; (c) agrees not to intentionally access any documentation or information for the Sellers or purpose of accessing Attorney-Client Information; (d) disclaims the right to assert a waiver by any of their respective Affiliates, on the other hand, or Seller Group Member with or between any other Persons, with respect regard to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection solicitor-client privilege, or other right to confidentiality with respect to such Attorney-Client Information solely due to the fact that such documentation or information is physically in the possession of the Company after the Closing; (e) consents to the Law Firm’s representation after the Closing of any Seller Group Member in any Related Claim arising out of this Agreement and the expectation Transactions, and consents to and waives any conflict of client confidence belongs solely interest arising therefrom without the need for any future waiver or consent; and (f) consents to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled disclosure by the Sellers Law Firm to any Seller Group Member of any documentation or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed information obtained by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in Law Firm during the course of its representation of the SellersCompany or any Affiliate prior to the Closing to the extent such documentation or information is related to this Agreement, the First Closing Acquired EntitiesRelated Documents, or the Transactions, and such disclosure either (i) constitutes Attorney-Client Information or (ii) is reasonably necessary to either enforce the applicable Seller Group Member’s rights under, or to defend against any claim against the Seller Group Member under, this Agreement, the Second Closing Acquired Entities Related Documents or their respective Affiliatesthe Transactions, whether or not such documentation or information disclosed is subject to any attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communicationssolicitor-client privilege, or confidentiality obligations to the files of Seller CounselCompany, whether or not any Applicable Closing occurs. Without limiting the generality an Affiliate of the foregoingCompany, upon and after each Applicable Closing, (A) but such disclosure may only be made to the extent that the applicable Seller Group Member is obligated to keep such documentation or information confidential and the Company and Affiliates of the Company are intended third party beneficiaries of such obligation. To the extent that the Company has any rights to request or control files of Seller Counsel constitute property of the clientLaw Firm, only the Sellers Seller Group Members shall have such rights. Notwithstanding the foregoing, in the event that any Related Claim arises after the Closing between any Purchaser Group Member and their respective Affiliates (a Person other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rightsa Seller Group Member, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to BuyerParent, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself Purchaser and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Company) may assert attorney-client privilege to prevent disclosure of confidential communications to such Person; provided, however, that such Purchaser Group Member shall be entitled to not waive such privilege only with respect to such files without the prior written consent of Seller; provided, further, that if such Purchaser Group Member is required by judicial order or other legal process to make such disclosure, such Purchaser Group Member shall promptly notify Seller in writing of such requirement (without making disclosure) and shall provide Seller with such cooperation and assistance as shall be necessary to enable Seller to prevent disclosure by reason of such attorney-client privilege, solicitor-client privilege, or other rights of confidentiality. This Section 10.16 is for the Sellers, not to be unreasonably withheld, conditioned or delayedbenefit of the Seller Group Members and such Persons are intended third-party beneficiaries of this Section 10.16.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Bakkt Holdings, Inc.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities Purchaser and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as acknowledge and agree that the Law Firm has represented the Sellers and their counsel Affiliates in connection with the negotiation, preparation, execution, delivery and performance of this Agreement and the Related Documents and the consummation of the Transactions, and that the Sellers, their Affiliates and its partners, officers, directors and representatives (the “Seller Counsel has not acted as counsel for any other Party Group Members”) have a reasonable expectation that the Law Firm will represent them in connection with the Transactions, and that none of the other Parties has the status of a client of any Action involving any Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective AffiliatesGroup Member, on the one hand, and Buyer and Purchaser or any of its Affiliates and representatives (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing“Purchaser Group Members”), on the other hand, are adversearising under this Agreement, arises after the Applicable Related Documents or the Transactions. Purchaser hereby, on behalf of itself and the other Purchaser Group Members, irrevocably: (a) acknowledges and agrees that any attorney-client privilege, solicitor-client privilege, work product or other attorney-client or solicitor-client confidential information arising from communications prior to the Closing between Buyerthe Sellers (including any one or more officers, directors or stockholders of the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingSellers), on the one hand, and the Sellers and their respective AffiliatesLaw Firm, on the other hand, Seller Counsel may represent relating to the negotiation, preparation, execution or delivery of this Agreement or any Related Document or all the consummation of the Sellers and their Affiliates in such disputeTransactions that is, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications immediately prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney evidentiary privileges (including the work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communicationsdoctrine), or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications confidence under applicable Law (“Attorney-Client Information”), are not included in the property, rights, privileges, powers, franchises and other interests that are possessed by or files to Buyervested in the Business or the Transferred Assets, that any such Attorney-Client Information shall be deemed property of, and controlled solely by, the First Closing Acquired Entities or Sellers for the Second Closing Acquired Entities by reason benefit and on behalf of the Seller Group Members and, upon request, convey and transfer any attorneyAttorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and Client Information to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates Sellers; (including b) acknowledge and agree that the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) Seller Group Members shall have the right to assert retain, or cause the Law Firm to retain, any such Attorney-Client Information in the possession of the Law Firm or the Seller Group Members at the Closing; (c) agree not to access, retain or use any documentation or information constituting Attorney-Client Information and that no Purchaser Group Member shall have any right to waive any attorney-client privilege or other right to confidentiality with respect to such Attorney-Client Information; (d) disclaim the right to assert a waiver by any communication between Seller Group Member with regard to the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) attorney-client privilege, solicitor-client privilege or their respective Affiliates, and any Person representing them, that occurred at any time prior other right to confidentiality with respect to such Applicable Closing, Buyer, on behalf Attorney-Client Information solely due to the fact that such documentation or information is physically in the possession of itself and its Affiliates (including the First Closing Acquired Entities Purchaser after the First Closing Closing; and (e) consent to the Second Closing Acquired Entities Law Firm’s representation after the Second Closing)Closing of any Seller Group Member in any Action to the extent relating to the Transactions and consent to and waive any conflict of interest arising therefrom without the need for any future waiver or consent. In the event that any Action arises after the Closing between any Purchaser Group Member and a Person other than a Seller Group Member, such Purchaser Group Member shall be entitled not disclose any documentation or information that is subject to waive such an attorney-client privilege only with or other rights of confidentiality referenced in this Section 10.17 without the prior written consent of the SellersCasa Seller; provided, not however, that if such Purchaser Group Member is required by judicial order or other legal process to be unreasonably withheldmake such disclosure, conditioned such Purchaser Group Member shall promptly notify the Casa Seller in writing of such requirement (without making disclosure) and shall provide the Sellers with such commercially reasonable cooperation and assistance to enable the Sellers to prevent disclosure by reason of such attorney-client privilege, solicitor-client privilege or delayedother rights of confidentiality.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each Each of the Parties acknowledges that Xxxxxxx Coie LLP (“PC”) currently serves as counsel to the First Closing Acquired EntitiesCompany, including in connection with the negotiation, preparation, execution and delivery of this Agreement, the Second Closing Acquired Entities other Transaction Documents and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectivelyconsummation of the Transactions. There may come a time, “Seller Counsel”) to act as their counsel including after consummation of Transactions, when the interests of the Equityholders and the Company may no longer be aligned. The Parties understand and specifically agree that PC may, in connection with the Transactions, represent the Equityholders and that Seller Counsel has not acted as counsel for any other Party the Equityholder Representative, even if the interests of the Equityholders and the interests of the Company or the Surviving Company are or may be adverse, including in connection with any dispute arising out of or relating to this Agreement or the Transactions, and that none even though PC may have represented the Company in a matter substantially related to such dispute or may be handling ongoing matters for the Company or any of its Affiliates, and Purchaser, Merger Sub, and the other Parties has the status of a client of Seller Counsel for Company hereby consent thereto and waive any conflict of interest arising therefrom. 157437977.10 (aj) Notwithstanding anything to the contrary contained herein, the Parties intend that all communications at or any other purposes as a result thereof. The Sellers prior to the Closing between the Company and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective AffiliatesEquityholders, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)any of their attorneys, on the other hand, are adverse, arises after including all communications relating to the Applicable Closing between Buyernegotiation of the Transactions and any alternative transactions (collectively, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand“Protected Communications”), and the Sellers all associated rights to assert, waive and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, otherwise administer the attorney-client privilegeprivilege and rights of confidentiality of the Company or the Equityholders (the “Associated Rights”), attorney work product protection will, from and after the Closing, rest exclusively with the Equityholders and the expectation Equityholder Representative and will not be transferred, assigned, conveyed or delivered, by operation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) law or otherwise.
(c) If and , to the extentPurchaser, at any time subsequent to each Applicable Closing, Buyer Merger Sub or any of its Affiliates (including the First Closing Acquired Entities including, after the First Closing Closing, the Surviving Company) or any successor or assign of any of the foregoing (collectively, the “Purchaser Group”). Accordingly, the Parties hereby agree that, as of immediately prior to the Closing, for the consideration set forth herein and for other good and valuable consideration, the Second Closing Acquired Entities receipt and sufficiency of which are hereby acknowledged: (i) all Protected Communications and Associated Rights are, and will be deemed for all purposes, transferred, assigned, conveyed and delivered in full to the Equityholders, and (ii) no member of the Purchaser Group (including, after the Second Closing, the Surviving Company) shall will have any right, title, interest or benefit in or to any of the Protected Communications or any Associated Rights. Without limiting the foregoing, the Parties acknowledge the decision of the Delaware Chancery Court in Great Hill Equity Partners IV, LP, et al. v. SIG Growth Equity Fund, I, LLLP, et al. (Civil Action No. 7905-CS, November 15, 2013) and desire to expressly exclude the Protected Communications and Associated Rights from the assets, rights, privileges and benefits of the Company that might otherwise be transferred or assigned to any member of the Purchaser Group by operation of law or otherwise. (ak) Each of Purchaser and Merger Sub hereby agrees, on its own behalf and on behalf of the other members of the Purchaser Group (including, after the Closing, the Surviving Company), from and after the Closing, that the Equityholders (i) will have the right to take possession and control of all Protected Communications effective as of the Closing, and (ii) if and to the extent the Equityholders fail to take such possession and control (which failure will not, alone or in association with any other act or omission, be deemed a waiver of any of its rights under this Section 11.15), the Equityholders will have the right to access and copy, from time to time, any Personal Information in the possession or control of any member of the Purchaser Group from and after the Closing, during normal business hours and with reasonable prior written notice, as may be reasonably necessary in connection with any post-Closing matter, whether or not such matter is known to any member of the Purchaser Group, in each, in the Equityholders sole cost and expense. If and to the extent that, at any time from and after the Closing, any member of the Purchaser Group will have any right or opportunity to assert or waive any an attorney-client privilege or right of confidentiality with respect to any communication between Protected Communication, each member of the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective AffiliatesPurchaser Group will not, and any Person representing themwill cause the other members of the Purchaser Group not to, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with or right of confidentiality without the prior written consent of the Sellers, not to Equityholder Representative (which consent may be unreasonably withheld, conditioned or delayeddelayed in its sole discretion).
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company and the Sellers have retained Xxxxxx & Xxxxxxx Company Subsidiaries), acknowledges and agrees that Xxxx Xxxxx LLP (collectively, “Seller CounselXxxx Xxxxx”) to act has acted as their counsel for the Seller, the Company and the Company Subsidiaries in connection with this Agreement and the Contemplated Transactions (the “Acquisition Engagement”), and in connection with this Agreement and the Contemplated Transactions, and that Seller Counsel Xxxx Xxxxx has not acted as counsel for any other Party Person, including the Buyer.
(b) Only the Seller, the Company and their respective Affiliates shall be considered clients of Xxxx Xxxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Company and the Company Subsidiaries), acknowledges and agrees that any disputeall confidential communications between the Seller, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Xxxx Xxxxx, on the other hand, that relate exclusively to the negotiation, documentation and consummation of the Acquisition Engagement or any dispute arising under thereunder (“Privileged Communications”) shall be deemed attorney-client privileged, and shall be deemed to belong solely to the Seller and its Affiliates (other than the Company and the Company Subsidiaries), and not the Company or the Company Subsidiaries, and shall not pass to or be claimed, held, or used by the Buyer or any of its Affiliates upon or after the Closing. Accordingly, the Buyer and its Affiliates shall not have access to any such Privileged Communications, or to the files of Xxxx Xxxxx relating to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that Privileged Communications in respect of the Acquisition Engagement constitute property of the client, except as otherwise provided herein, only the Seller and its Affiliates shall hold such property rights and (ii) Xxxx Xxxxx shall have no duty whatsoever to reveal or disclose any such Privileged Communications to the Buyer or any of its Affiliates by reason of any attorney-client relationship between Xxxx Xxxxx and the Company, the Company Subsidiaries or otherwise; provided, however, that notwithstanding the foregoing, Xxxx Xxxxx shall not disclose any Privileged Communications to any third parties (other than Representatives, accountants and advisors of the Seller and its Affiliates; provided that such Representatives, accountants and advisors are instructed to maintain the confidence of such Privileged Communications). The Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the Company and the Second Closing Acquired Entities Company Subsidiaries), irrevocably waives any right it may have to discover or obtain any such Privileged Communications. If and to the extent that, at any time subsequent to Closing, the Buyer or any of its Affiliates (including after the Second Closing, the Company and the Company Subsidiaries) shall have the right to assert or waive any attorney-client privilege with respect to any such Privileged Communications between the Company or its Affiliates and any Person representing them that occurred at any time prior to the Closing, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company and the Company Subsidiaries), shall be entitled to waive such privilege only with the prior written consent of the Seller (such consent not to be unreasonably withheld).
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company and the Company Subsidiaries), acknowledges and agrees that Xxxx Xxxxx is acting as counsel for the Seller, the Company and their respective Affiliates and that the Seller reasonably anticipates that Xxxx Xxxxx will continue to represent it and/or its Affiliates in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company and the Company Subsidiaries), expressly (i) consents to Xxxx Xxxxx’x representation of the Seller and/or their respective Affiliates in any matter, including any post-Closing matter in which the interests of the Buyer and the Company, on the one hand, and the Seller or its Affiliates, on the other hand, are adverse, arises after including any matter relating to the Applicable Closing between BuyerContemplated Transactions or any dispute or disagreement relating thereto, and whether or not such matter is one in which Xxxx Xxxxx may have previously advised the Seller, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its Company or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose consents to the Sellers disclosure by Xxxx Xxxxx to the Seller or their respective its Affiliates of any information learned by Seller Counsel Xxxx Xxxxx in the course of its representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s or Xxxx Xxxxx’x duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon .
(d) Upon and after each Applicable the Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing Company and the Second Closing Acquired Entities after the Second Closing) Company Subsidiaries shall hold such property rights, and (B) Seller Counsel shall cease to have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If with Xxxx Xxxxx, unless and to the extent, at any time subsequent extent Xxxx Xxxxx is expressly engaged in writing by the Company and/or the Company Subsidiaries to each Applicable Closing, Buyer represent the Company or the Company Subsidiaries after the Closing and either (i) such engagement involves no conflict of interest with respect to the Seller and/or any of its Affiliates or (including ii) the First Closing Acquired Entities Seller and/or any of its Affiliates, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxx Xxxxx after the First Closing and shall not affect the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.foregoing provisions hereof. [Signature page follows]
Appears in 1 contract
Legal Representation. (a) It is acknowledged Parent agrees that, as to communications between and among all counsel for the Company and its Subsidiaries or their respective Affiliates solely to the extent that such communications relate to the transactions contemplated by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP or in connection with this Agreement (collectively, the “Seller CounselPrivileged Communications”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse subject to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliatesapplicable Law, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely with respect to the Sellers or their Affiliates (other than Privileged Communications belongs to the First Closing Acquired Entities after the First Closing Company and the Second Closing Acquired Entities after the Second Closing), its Subsidiaries and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Company and the Second Closing Acquired Entities after the Second Closing), its Subsidiaries and shall will not pass to or be claimed by BuyerParent or any of its respective Subsidiaries (including, following the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities Surviving Company). The Privileged Communications are the property of the Company and its Subsidiaries and, subject to applicable Law, from and after the Second Closing, none of Parent, its Subsidiaries (including, following the Closing, the Surviving Company) or any Person purporting to act on behalf of or through Parent or such Subsidiaries will seek to obtain the Privileged Communications, whether by seeking a waiver of the attorney-client privilege or through other means. Parent and its respective Subsidiaries (including, following the Closing, the Surviving Company), together with any of their respective Affiliates, and (ii) Seller Counsel successors or assigns, further agree that no such party may disclose to the Sellers use or their respective Affiliates rely on any information learned by Seller Counsel in the course of its representation of the Sellers, Privileged Communications in any action against or involving the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer Company or any of its Affiliates Subsidiaries. The Privileged Communications may be used by Parent and its Subsidiaries in connection with any dispute that relates to the transactions contemplated by or in connection with this Agreement. Notwithstanding the foregoing, in the event that a dispute arises between Parent or any of its respective Subsidiaries and a third party (including the First Closing Acquired Entities other than a party to this Agreement or any of its Affiliates) after the First Closing Closing, Parent and its Subsidiaries may assert the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior prevent disclosure of confidential communications by counsel to such Applicable third party; provided that neither Parent nor its Subsidiaries (including, following the Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Surviving Company) may waive such privilege only with without the prior written consent of the SellersShareholders’ Representative. The parties further agree that Xxxxx Day may represent the Shareholders’ Representative, not the Carlyle Shareholder or any other Former Holder in the event of any dispute that relates to be unreasonably withheld, conditioned the transactions contemplated by or delayedin connection with this Agreement.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each Parent, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Surviving Corporation) acknowledges and agrees that Xxxxx Xxxxx LLP (“Xxxxx Xxxxx”) has acted as counsel for the Fully-Diluted Stockholders, the Representative and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Transaction Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxxx Xxxxx has not acted as counsel for any other Party in connection with Person, including Parent.
(b) Only the TransactionsFully-Diluted Stockholders, the Representative, the Company and that none their respective Affiliates shall be considered clients of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, Xxxxx Xxxxx in the event Transaction Engagement. Parent, on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation) acknowledges and agrees that any disputeall confidential communications between the Fully-Diluted Stockholders, or any other matter in which the interests of Sellers Representative, the Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxxx Xxxxx, on the other hand, are adversein the course of the Transaction Engagement, arises and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Fully-Diluted Stockholders, the Representative and their respective Affiliates (other than the Company), and not the Company, and shall not pass to or be claimed, held, or used by Parent or the Company (or, after the Applicable Closing between BuyerClosing, the First Closing Acquired Entities Surviving Corporation) upon or after the First Closing. Accordingly, Parent shall not have access to any such communications, or to the files of Xxxxx Xxxxx to the extent relating to the Transaction Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of Xxxxx Xxxxx in respect of the Transaction Engagement constitute property of the client, only the Fully-Diluted Stockholders, the Representative, and their respective Affiliates shall hold such property rights and (ii) Xxxxx Xxxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Company (or, after the Closing, the Surviving Corporation) or Parent by reason of any attorney-client relationship between Xxxxx Xxxxx and the Company or otherwise, unless and to the extent that the Representative waives, on behalf of the Fully-Diluted Stockholders, the attorney-client privilege with respect thereto; provided, however, that notwithstanding the foregoing, Xxxxx Xxxxx shall not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisors of the Fully-Diluted Stockholders and their respective Affiliates; provided, further, that such representatives, accountants and advisors are instructed and agree to maintain the confidence of such attorney-client communications). Parent, on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation) irrevocably waives any right it may have to discover or obtain information or documentation relating to the Transaction Engagement, to the extent that such information or documentation was subject to an attorney-client privilege or work product protection owed to the Fully-Diluted Stockholders, the Representative and/or their respective Affiliates, except to prevent disclosure of confidential communications by Xxxxx Xxxxx to a third party. If and to the extent that, at any time subsequent to the Closing, Parent or any of its Affiliates (including, after the Closing, the Surviving Corporation) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the Company or its Affiliates and any Person representing them that occurred at any time prior to the Closing, Parent, on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation) shall be entitled to waive such privilege only with the prior written consent of the Representative (such consent not to be unreasonably withheld); provided, that in connection with any third party Action not involving the Representative, the Fully-Diluted Stockholders or their respective Affiliates relating to this Agreement or the Second Closing Acquired Entities Related Agreements, Parent shall be entitled to waive any attorney-client privilege, attorney work product protection and expectation of client confidentiality without the consent of any Person.
(c) Parent, on behalf of itself and its Affiliates (including, after the Second Closing, the Surviving Corporation) acknowledges and agrees that Xxxxx Xxxxx has acted as counsel for certain of the Fully-Diluted Stockholders, the Representative, the Company and their respective Affiliates for several years and that such Fully-Diluted Stockholders and such Representative reasonably anticipate that Xxxxx Xxxxx will continue to represent them and/or their respective Affiliates in future matters. Accordingly, Parent, on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation) expressly (i) consents to Xxxxx Xxxxx’x representation of the Fully-Diluted Stockholders and the Representative and/or their respective Affiliates and/or any of their respective agents (if any of the foregoing Persons so desire) in any matter, including any post-Closing matter in which the interests of Parent and the Surviving Corporation, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to BuyerFully-Diluted Stockholders, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers Representative or any of their respective Affiliates, on the other hand, or with or between are adverse, including any other Persons, with respect matter relating to the Transactionstransactions contemplated by this Agreement, (i) as to all communications among Seller Counseland whether or not such matter is one in which Xxxxx Xxxxx may have previously advised the Fully-Diluted Stockholders, the First Closing Acquired Entities (with respect to communications prior to the First Closing)Representative, the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers Company or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose consents to the Sellers disclosure by Xxxxx Xxxxx to the Fully-Diluted Stockholders, the Representative or their respective Affiliates of any information learned by Seller Counsel Xxxxx Xxxxx in the course of its representation of the SellersFully-Diluted Stockholders, the First Closing Acquired EntitiesRepresentative, the Second Closing Acquired Entities Company or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s or Xxxxx Xxxxx’x duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality .
(d) Each of the foregoingparties understands and agrees that it has undertaken reasonable efforts to prevent the disclosure of communications among Xxxxx Xxxxx, upon on the one hand, and after each Applicable Closingthe Fully-Diluted Stockholders, (A) to the extent Representative, the Company and their Affiliates, on the other hand, in connection with the Transaction Engagement. Notwithstanding those efforts, the parties understand and agree that files of Seller Counsel constitute property the consummation of the clienttransactions contemplated by this Agreement could result in the inadvertent disclosure of information or communications that may be confidential, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever eligible to reveal or disclose any such be subject to a claim of attorney-client privilege, or otherwise protected from disclosure. The parties further understand and agree that, except as otherwise set forth in this Section 11.16, any such inadvertent disclosure of such information or communications that may be confidential, subject to a claim of attorney-client privilege, or files otherwise protected from disclosure will not constitute a waiver of or otherwise prejudice any claim of confidentiality, attorney-client privilege, or protection from disclosure, including, but not limited to, with respect to Buyerinformation or communications involving or concerning the same subject matter as the disclosed information. Each party agree to use reasonable best efforts to return or destroy, at such party’s option, any inadvertently disclosed information or communications to the disclosing party promptly upon becoming aware of its existence from such other party or other parties. The parties further agree that promptly after the return or destruction of any inadvertently disclosed information or communications, the First Closing Acquired Entities party returning or destroying such information or communications shall use commercially reasonable efforts to return or destroy, at the Second Closing Acquired Entities returning party’s election, any and all copies, summaries, descriptions and/or notes of such inadvertently disclosed information or communications, including electronic versions thereof, and all portions of larger documents or communications that contain such copies, summaries, descriptions and/or notes; provided, however, that the non-disclosing party may retain such information and documentation as required by reason of Applicable Law or otherwise in accordance with such party’s bona fide document retention and electronic backup policies.
(e) From and after the Closing, the Surviving Corporation shall cease to have any attorney-client relationship between Seller Counsel with Xxxxx Xxxxx, unless and to the First extent Xxxxx Xxxxx is expressly engaged in writing by the Surviving Corporation to represent the Surviving Corporation after the Closing Acquired Entities and either (i) such engagement involves no conflict of interest with respect to the Second Closing Acquired Entities Fully-Diluted Stockholders, the Representative and/or any of their respective Affiliates or (ii) the Fully-Diluted Stockholders, the Representative and/or any such Affiliate, as applicable) or otherwise, consent in writing to such engagement. Any such representation of the Surviving Corporation by Xxxxx Xxxxx after the Closing shall not affect the foregoing provisions of this Section 11.16.
(cf) If and Each of the parties to this Agreement consents to the extent, at arrangements in this Section 11.16 and waives any time subsequent to each Applicable Closing, Buyer actual or potential conflict of interest that may be involved in connection with any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedrepresentation by Xxxxx Xxxxx permitted hereunder.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by Parent hereby agrees on behalf of its directors, members, partners, officers, employees and Affiliates (including after the Closing, the Company), and each of the Parties that the First Closing Acquired Entitiestheir respective successors and assigns (all such parties, the Second Closing Acquired Entities and “Parent Waiving Parties”), that Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP (or any successor) may represent the Sellers have retained Xxxxxx & Xxxxxxx LLP Company Interest Holders or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Company) (collectively, the “Seller CounselCompany Interest Holder Party Group”), in each case, in connection with any Legal Proceeding or obligation arising out of or relating to this Agreement, any Transaction Agreement or the Transactions, notwithstanding its representation (or any continued representation) of the Company or other Parent Waiving Parties, and each of Parent and the Company on behalf of itself and the Parent Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising therefrom or relating thereto. Parent and the Company acknowledge that the foregoing provision applies whether or not Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP provides legal services to act as their counsel the Company after the Closing Date. Each of Parent and the Company, for itself and the Parent Waiving Parties, hereby further irrevocably acknowledges and agrees that all communications, written or oral, between the Company or any member of the Parent Waiving Party Group and its counsel, including Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Transaction Agreements or the Transactions, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company notwithstanding the Mergers, and instead survive, remain with and are controlled by the Company Interest Holder Party Group (the “Company Interest Holder Privileged Communications”), without any waiver thereof. Parent and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that Seller Counsel no Person may use or rely on any of the Company Interest Holder Privileged Communications, whether located in the records or email server of the Company or otherwise (including in the knowledge of the officers and employees of the Company), in any Legal Proceeding against or involving any of the Parties after the Closing, and Parent and the Company agree not to assert that any privilege has been waived as to the Company Interest Holder Privileged Communications, whether located in the records or email server of the Company or otherwise (including in the knowledge of the officers and employees of the Company).
(b) The Company hereby agrees on behalf of its directors, members, partners, officers, employees and Affiliates and the Company Interest Holders, and each of their respective successors and assigns (all such parties, the “Company Waiving Parties”), that White & Case LLP (or any successor) may represent the Sponsor, Parent or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Company) (collectively, the “Parent Party Group”), in each case, in connection with any Legal Proceeding or obligation arising out of or relating to this Agreement, any Transaction Agreement or the Transactions, notwithstanding its representation (or any continued representation) of the Parent Party Group, and the Company on behalf of itself and Company Waiving Parties hereby consents thereto and irrevocably waives (and will not acted as counsel for assert) any conflict of interest, breach of duty or any other objection arising therefrom or relating thereto. The Company acknowledges that the foregoing provision applies whether or not White & Case LLP provides legal services to the Sponsor or Parent after the Closing Date. The Company, for itself and the Company Waiving Parties, hereby further irrevocably acknowledges and agrees that all communications, written or oral, between any of the Parent Party Group and its counsel, including White & Case LLP, made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Transaction Agreements or the Transactions, and that none or any matter relating to any of the other Parties has foregoing, are privileged communications that do not pass to the status of a client of Seller Counsel for conflict of interest or Company notwithstanding the Mergers, and instead survive, remain with and are controlled by the Parent Party Group (the “Parent Privileged Communications”), without any other purposes as a result waiver thereof. The Sellers Sponsor and Buyer hereby Parent, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree thatthat no Person may use or rely on any of the Parent Privileged Communications, whether located in the records or email server of the Company or otherwise (including in the knowledge or the officers and employees of the Company), in any Legal Proceeding against or involving any of the Parties after the Closing, and the Company Waiving Parties agree not to assert that any privilege has been waived as to the Parent Privileged Communications. Notwithstanding the foregoing, in the event that any disputea dispute arises between Parent, Merger Subs or any other matter in which the interests of Sellers and their respective AffiliatesSurviving Entity, on the one hand, and Buyer and its Affiliates a third party other than a Party to this Agreement (including the First Closing Acquired Entities or any Affiliate or Representative thereof) after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, Surviving Entity may assert the attorney-client privilegeprivilege to prevent disclosure of confidential communications by White & Case LLP to such third party; provided, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing themhowever, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Surviving Entity may not waive such privilege only with without the prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSponsor.
Appears in 1 contract
Samples: Merger Agreement (VPC Impact Acquisition Holdings III, Inc.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree Purchaser agrees that, in as to all communications prior to the event that any dispute, or any other matter in which the interests of Sellers and their respective AffiliatesClosing between Xxxxx Day, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Seller, on the other hand, are adverse, arises after the Applicable Closing between BuyerNII Holdings, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, extent that they are in respect of to the transactions contemplated by this Agreement (i) as to all communications among Seller Counselcollectively, the First Closing Acquired Entities (with respect to communications prior to the First Closing“Privileged Communications”), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely with respect to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Privileged Communications belongs to Seller and/or NII Holdings and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Seller and/or NII Holdings and the Second Closing Acquired Entities after the Second Closing), and shall will not pass to or be claimed by BuyerPurchaser or any of its Affiliates (including, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities Entities). The Privileged Communications are the property of Seller and/or NII Holdings, and, from and after the Second Closing, none of Purchaser or its Affiliates (including the Entities), or any Person purporting to act on behalf of or through Purchaser or its Affiliates (including the Entities) will have the right to obtain such communications, whether by waiver of the attorney-client privilege or through other means. The Privileged Communications may be used by Seller, NII Holdings or any of their respective Affiliates in connection with any dispute that relates to the transactions contemplated by this Agreement, including in any claim brought by Purchaser. Notwithstanding the foregoing, in the event that a dispute arises after the Closing between Purchaser or its Affiliates (including the Entities) and a third party (other than a Party to this Agreement or any of their respective Affiliates), and (ii) Seller Counsel may disclose to the Sellers Purchaser or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after Entities) may assert the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesprevent disclosure of confidential communications by counsel to such third party, and any Person representing themprovided, however, that occurred at any time prior to such Applicable Closing, Buyer, on behalf none of itself and Purchaser or its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Entities) may waive such privilege only with without the prior written consent of the Sellers, Seller (not to be unreasonably withheld, conditioned or delayed).
(b) The Parties agree that Purchaser will not, and will cause any Affiliates (including, after Closing, the Entities) not to, seek to have Xxxxx Day disqualified from representing Seller or its Affiliates in connection with any dispute that may arise between Seller or its Affiliates and any of Purchaser or any of its Affiliates (including, after Closing, the Entities) in connection with this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Legal Representation. Recognizing that Holland & Knight LLP (a“H&K”) It is acknowledged by has acted as legal counsel to the Acquired Companies and Seller prior to the Closing, and that H&K may act as legal counsel to Seller after the Closing, each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities Buyer and the Sellers Acquired Companies hereby waives, on its own behalf and agrees to cause its Affiliates to waive, to the extent permitted by Applicable Law, any conflicts of interest that may arise in connection with H&K representing Seller after the Closing in connection with this Agreement and the transactions contemplated by this Agreement, based on the fact that H&K may be deemed to have retained Xxxxxx & Xxxxxxx LLP (collectively, “represented the Acquired Companies and Seller Counsel”) prior to act as their counsel the Closing or in connection with the Transactionstransactions contemplated in this Agreement. In addition, all communications involving attorney- client confidences between any Acquired Company, Seller and that Seller Counsel has not acted as counsel for any other Party H&K in connection with the Transactions, and that none course of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers negotiation and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all documentation of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may transactions contemplated by this Agreement will be directly adverse deemed to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the be attorney-client privilege, attorney work product protection and the expectation of client confidence belongs confidences that belong solely to the Sellers or their Affiliates Seller (other than the First Closing and not any Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Company) and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occursSeller. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Aa) Seller and its Affiliates (and not the Acquired Companies) will be the sole holders of the attorney-client privilege with respect to the extent that files of Seller Counsel constitute property negotiation and documentation of the clienttransactions contemplated hereby (collectively, only the Sellers “Pre-sale Communications”), and their respective Affiliates (other than each Acquired Company will not be a holder of the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rightsPre-sale Communications, and (Bb) Seller Counsel shall H&K will have no duty whatsoever to reveal or disclose any such attorneythe Pre-client communications sale Communications or files pertaining to Buyer, the First Closing Pre-sale Communications to any Acquired Entities or the Second Closing Acquired Entities Company by reason of any attorney-client relationship between Seller Counsel H&K and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Companies or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, . Any access by Buyer or any of its Affiliates (including the First Closing Acquired Entities Company to Pre-sale Communications after the First Closing and (whether through any Acquired Company’s computer systems or otherwise) will not amount to a waiver of the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege privilege, nor will it adversely affect any rights of Seller with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedattorney-client privilege.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities Company and the Sellers Seller have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Seller’s Counsel”) to act as their counsel in connection with the Transactions, transactions contemplated hereby and that Seller Xxxxxx’s Counsel has not acted as counsel for any other Party in connection with the Transactions, transactions contemplated hereby and that none of the other Parties has the status of a client of Seller Seller’s Counsel for conflict of interest or any other purposes as a result thereof. The Sellers Seller and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers Seller and their respective its Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing Buyer or the Second Closing Acquired Entities after the Second ClosingCompany, on the one hand, and the Sellers Seller and their respective its Affiliates, on the other hand, Seller Seller’s Counsel may represent any or all of the Sellers Seller and their its Affiliates in such dispute, dispute even though the interests of the Sellers Seller and their its Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities Buyer or the Second Closing Acquired EntitiesCompany, and even though Seller Seller’s Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities Company in any matter substantially related to such dispute.
(b) The Sellers Seller and Buyer and their respective Affiliates, including following the Closing with respect to the First Closing Acquired Entities and the Second Closing Acquired EntitiesCompany, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations Actions or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company or any of its or their respective Affiliates, on the one hand, and the Sellers Seller or any of their respective its Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactionstransactions contemplated by this Agreement or otherwise, (i) as to all communications among Seller Seller’s Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing)Company, the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers Seller or any of their respective its Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers Seller or their its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany), and may be controlled by the Sellers Seller or their its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second ClosingCompany, or any of their respective Affiliates, Affiliates and (ii) Seller Seller’s Counsel may disclose to the Sellers Seller or their respective its Affiliates any information learned by Seller Seller’s Counsel in the course of its representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Seller’s Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Seller’s Counsel, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (A) to the extent that files of Seller Seller’s Counsel constitute property of the client, only the Sellers Seller and their respective its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (B) Seller Seller’s Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Buyer or the Second Closing Acquired Entities Company by reason of any attorney-client relationship between Seller Seller’s Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or otherwise.
(c) If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or their respective Affiliates, its Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany), shall be entitled to waive such privilege only with the consent of Seller.
(d) It is acknowledged by each of the SellersParties that Xxxxx has retained Xxxxx & XxXxxxxx LLP and Xxxxxx & Bird LLP (collectively, “Buyer’s Counsel”) to act as its counsel in connection with the transactions contemplated hereby and that Xxxxx’s Counsel has not acted as counsel for any other Party in connection with the transactions contemplated hereby and that none of the other Parties has the status of a client of Xxxxx’s Counsel for conflict of interest or any other purposes as a result thereof. Seller and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Seller and its Affiliates, on the one hand, and Buyer and its Affiliates (including the Company), on the other hand, are adverse, arises after the Closing between Buyer and its Affiliates (including the Company), on the one hand, and Seller and its Affiliates, on the other hand, Buyer’s Counsel may represent any or all of Buyer and its Affiliates in such dispute even though the interests of Buyer and its Affiliates may be directly adverse to be unreasonably withheldSeller, conditioned and even though Buyer’s Counsel formerly may have represented Seller or delayedits Affiliates in any matter substantially related to such dispute.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Coherus BioSciences, Inc.)
Legal Representation. (a) It is acknowledged by each of The Parties agree that, notwithstanding the Parties fact that the First Closing Acquired EntitiesLoeb & Loeb LLP may have, prior to Closing, jointly represented AAO and/or Merger Sub in connection with this Agreement, the Second Closing Acquired Entities Ancillary Documents and the Sellers have retained Xxxxxx transactions contemplated hereby and thereby, and has also represented AAO and/or its Affiliates in connection with matters other than the transaction that is the subject of this Agreement, Loeb & Xxxxxxx Loeb LLP (collectivelywill be permitted in the future, “Seller Counsel”) after Closing, to act as their represent Sponsor or its Affiliates in connection with matters in which such Persons are adverse to AAO or any of its Affiliates, including any disputes arising out of, or related to, this Agreement. The Company, who is or has the right to be represented by independent counsel in connection with the Transactionstransactions contemplated by this Agreement, hereby agree, in advance, to waive (and to cause their Affiliates to waive) any actual or potential conflict of interest that Seller Counsel has not acted as counsel for any other Party may hereafter arise in connection with the Transactions, and that none Loeb & Loeb LLP’s future representation of the other Parties has the status one or more of a client of Seller Counsel for conflict of interest Sponsor or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter their respective Affiliates in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, such Person are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though adverse to the interests of the Sellers and their Affiliates may be directly adverse to BuyerAAO, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers Company or any of their respective Affiliates, on the other handincluding any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by Loeb & Loeb LLP of AAO, or with or between any other PersonsMerger Sub, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates. The Parties acknowledge and agree that, for the purposes of the attorney-client privilege, attorney work product protection Sponsor and AAO shall be deemed the clients of Loeb & Loeb LLP with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence belongs relating thereto shall belong solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Sponsor and the Second Closing Acquired Entities after the Second Closing)AAO, and may shall be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Sponsor and the Second Closing Acquired Entities after the Second Closing), AAO and shall not pass to or be claimed by BuyerAAO post-Closing; provided, the First Closing Acquired Entities after the First Closingfurther, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose that nothing contained herein shall be deemed to the Sellers or their respective Affiliates any information learned be a waiver by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer AAO or any of its Affiliates (including the First Closing Acquired Entities including, after the First Closing and the Second Closing Acquired Entities after the Second ClosingEffective Time) shall have the right of any applicable privileges or protections that can or may be asserted to assert or waive prevent disclosure of any attorney-client privilege with respect such communications to any communication between third party.
(b) Each Party warrants and represents that (i) it is a sophisticated party represented at all relevant times during the First Closing Acquired Entities negotiation and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesexecution of this Agreement by counsel of its choice, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only it has executed this Agreement with the consent and on the advice of such independent legal counsel; (ii) it and its counsel have determined through independent investigation and robust, arm’s-length negotiation that the Sellersterms of this Agreement shall exclusively embody and govern the subject matter of this Agreement; (iii) it has investigated the facts pertinent to this Agreement as it deemed necessary; (iv) no other Person or Party, nor any agent or attorney of a Party, made any promise, representation or warranty whatsoever, express or implied, not contained in this Agreement concerning the subject matter of this Agreement to be unreasonably withheldinduce it to execute this Agreement; (v) it has not executed this Agreement in reliance on any promise, conditioned representation or delayed.warranty whatsoever, express or implied, not contained in this Agreement concerning the subject matter of this Agreement; and (vi) it has not executed this Agreement in reliance on any promise, representation or warranty not contained herein. The Parties included this paragraph to preclude any claim that any Party was fraudulently induced to execute this Agreement and to preclude the introduction of parol evidence to vary, interpret, supplement or contradict the terms of this Agreement. [Signature Page Follows]
Appears in 1 contract
Samples: Merger Agreement (American Acquisition Opportunity Inc.)
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company and its Subsidiaries) acknowledges and agrees that Xxxxxx, Xxxx & Xxxxxxxx LLP (“Xxxxxx Xxxx”) has acted as counsel for the Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company and its Subsidiaries in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxxxx Xxxx has not acted as counsel for any other Party Person, including the Buyer.
(b) Only the Seller, the Company and its Subsidiaries and their respective Affiliates shall be considered clients of Xxxxxx Xxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Company and its Subsidiaries) acknowledges and agrees that any disputeall confidential communications between the Seller, or any other matter in which the interests of Sellers Company and its Subsidiaries and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxxxx Xxxx, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect extent relating to the TransactionsAcquisition Engagement, (i) as to all communications among Seller Counselwhich, the First Closing Acquired Entities (with respect to communications immediately prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the constitute attorney-client privilegeprivileged communications (the “Protected Communications”), attorney work product protection and the expectation of client confidence belongs shall be deemed to belong solely to the Sellers or their Seller and its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany), and may be controlled by not the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Company, and shall not pass to or be claimed claimed, held, or used by Buyer, the First Closing Acquired Entities Buyer or the Company upon or after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, the Buyer and its Affiliates shall not have or seek access to any such communicationsProtected Communications (and to the extent such access is obtained unintentionally, the Buyer shall promptly discontinue such access), or to the files of Seller CounselXxxxxx Xxxx relating to the Protected Communications, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ai) to the extent that files of Seller Counsel Xxxxxx Xxxx in respect of the Protected Communications constitute property of the client, only the Sellers Seller and their respective its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (Bii) Seller Counsel Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Company or the Second Closing Acquired Entities Buyer by reason of any attorney-client relationship between Seller Counsel Xxxxxx Xxxx and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or otherwise.
; provided, however, that notwithstanding the foregoing, Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (c) other than Representatives, accountants and advisors of the Seller and its Affiliates; provided, that such Representatives, accountants and advisors are instructed to maintain the confidence of such attorney-client communications). If and to the extentextent that, at any time subsequent to each Applicable Closing, the Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and Closing, the Second Closing Acquired Entities after the Second ClosingCompany) shall have the right to assert or waive any attorney-client privilege with respect to any communication between Protected Communications, the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and Closing, the Second Closing Acquired Entities after the Second Closing), Company) shall be entitled to waive such privilege only with the prior written consent of the SellersSeller.
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) acknowledges and agrees that Xxxxxx Xxxx has acted as counsel for the Seller, the Company and its Subsidiaries and their respective Affiliates for several years and that the Seller reasonably anticipates that Xxxxxx Xxxx will continue to represent it and/or its Affiliates (other than the Company after the Closing) in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) expressly (i) consents to Xxxxxx Xxxx’x representation of the Seller and/or its Affiliates (other than the Company after the Closing) and/or any of their respective agents (if any of the foregoing Persons so desire) in any post-Closing matter in which the interests of the Buyer and the Company, on the one hand, and the Seller or any of its Affiliates, on the other hand, are adverse, in each case, to the extent relating to the transactions contemplated by this Agreement, and whether or not such matter is one in which Xxxxxx Xxxx may have previously advised the Seller, the Company and its Subsidiaries or their respective Affiliates and (ii) consents to the disclosure by Xxxxxx Xxxx to the Seller or its Affiliates of any Protected Communications in connection with any such representation described in clause (i) of this sentence.
(d) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Company or its Affiliates by Xxxxxx Xxxx in connection with this Agreement or the transactions contemplated hereby.
(e) From and after the Closing, the Company shall cease to have any attorney-client relationship with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is expressly engaged in writing by the Company to represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Seller and/or any of its Affiliates or (ii) the Seller or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxxxx Xxxx after the Closing shall not affect the foregoing provisions hereof. Furthermore, Xxxxxx Xxxx, in its sole discretion, shall be unreasonably withheld, conditioned permitted to withdraw from representing the Company and its Subsidiaries in order to represent or delayedcontinue so representing the Seller.
(f) The Seller and the Buyer consent to the arrangements in this Section 10.19 and waive any actual or potential conflict of interest that may be involved in connection with any representation by Xxxxxx Xxxx permitted hereunder.
Appears in 1 contract
Legal Representation. The Buyer, on behalf of itself and its Affiliates (a) It is acknowledged by each of including, following the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company and the Sellers have retained Xxxxxx & its Subsidiaries), acknowledges and agrees that Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP (collectively, “Seller CounselPWSP”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the TransactionsSelling Entities, the Company, and their respective Affiliates and that none the Selling Entities reasonably anticipate that PWSP will continue to represent them in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including, following the Closing, the Company and its Subsidiaries) expressly consents to: (a) PWSP’s representation of the other Parties has the status of a client of Seller Counsel for conflict of interest or Selling Entities and/or their respective Affiliates in any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other post-Closing matter in which the interests of Sellers and their respective Affiliatesthe Buyer or the Company (including any of its Subsidiaries), on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Selling Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)or their respective Affiliates, on the other hand, are adverse, arises after including, without limitation, any matter relating to the Applicable Closing between Buyertransactions contemplated by this Agreement or any disagreement or dispute relating thereto, and whether or not such matter is one in which PWSP may have previously advised the Selling Entities, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingCompany, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates and (b) the disclosure by PWSP to the Selling Entities or their respective Affiliates of any information learned by Seller Counsel PWSP in the course of its representation of the Sellers, the First Closing Acquired Selling Entities, the Second Closing Acquired Entities Company, or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counselprivilege or PWSP’s duty of confidentiality. AccordinglyFurthermore, Buyer the Buyer, on behalf of itself and its Affiliates (including, following the Closing, the Company), (x) irrevocably waives any right it may have to discover or obtain information or documentation relating to the representation of the Selling Entities and/or their Affiliates by PWSP in the transactions contemplated hereby, to the extent that such information or documentation was privileged as to the Selling Entities and/or their respective Affiliates (“Confidential Communications”), and (y) agrees that (i) the privilege with respect to such Confidential Communications shall remain with the Selling Entities following the Closing such that, without limiting the Selling Entities’ right to such privilege, the Selling Entities alone shall have and maintain the right to waive the privilege, (ii) if the Company and/or its Affiliates or their respective stockholders, equity holders, officers, directors, members, or managers leave any emails or other documents (both electronic or otherwise) that contain Confidential Communications on the Company or its Subsidiaries’ servers or with the Company or any of its Subsidiaries, such occurrence shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality constitute a waiver of the foregoing, upon and after each Applicable Closingattorney-client privilege or any other privilege applicable to such documents, (Aiii) to the extent that files of Seller Counsel constitute property any emails or other documents (either electronic or otherwise) containing any Confidential Communications are included in the computer server(s) of the clientCompany or its Subsidiaries or are otherwise within the records of the Company or its Subsidiaries following the Closing, only it will, upon discovery of any such documents, permanently delete or destroy all such emails or other documents containing such Confidential Communication and not review, disclose, or otherwise use such documents or the Sellers Confidential Communications for any purpose. The Buyer, on behalf of itself and their respective its Affiliates (other than including, following the First Closing Acquired Entities Closing, the Company and its Subsidiaries), further covenants and agrees that each shall not assert any claim against PWSP in respect of legal services provided to the Company or its Affiliates by PWSP in connection with this Agreement or the transactions contemplated hereby. Upon and after the First Closing Closing, each of the Company and the Second Closing Acquired Entities after the Second Closing) its Subsidiaries shall hold such property rights, and (B) Seller Counsel shall cease to have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel with PWSP, unless and to the First extent PWSP is specifically engaged in writing by the Company or such Subsidiary to represent it after the Closing Acquired and either such engagement involves no conflict of interest with respect to the Selling Entities and and/or their respective Affiliates or the Second Closing Acquired Selling Entities (and/or their respective Affiliates, as applicable) , consent in writing at the time to such engagement. Any such representation of the Company or otherwise.
(c) its Subsidiaries by PWSP after the Closing shall not affect the foregoing provisions hereof. If and to the extentextent that, at any time subsequent to each Applicable Closing, the Buyer or any of its Affiliates (including including, following the First Closing Acquired Entities after Closing, the First Closing Company and the Second Closing Acquired Entities after the Second Closingits Subsidiaries) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities Company and the Second Closing Acquired Entities (as applicable) its Subsidiaries or its and their respective Affiliates, Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, the Buyer, on behalf of itself and its Affiliates (including including, following the First Closing Acquired Entities after Closing, the First Closing Company and the Second Closing Acquired Entities after the Second Closingits Subsidiaries), shall be entitled to waive such privilege only with the prior written consent of PWSP and the Sellers, not to be unreasonably withheld, conditioned or delayedSelling Entities.
Appears in 1 contract
Samples: Securities and Asset Purchase Agreement (KAMAN Corp)
Legal Representation. (a) It is acknowledged by each Each of the Parties parties to this Agreement hereby agrees that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted may serve as counsel for any other Party in connection with to the Transactions, Seller and that none certain of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing individually and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyercollectively, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing“Seller Group”), on the one hand, and the Sellers Company and their respective Affiliatesits Subsidiaries, on the other hand, Seller Counsel may represent any or all in connection with the negotiation, preparation, execution and delivery of this Agreement and the consummation of the Sellers transactions contemplated hereby, and their Affiliates in such disputethat following the Closing, even though the interests Xxxxxxxx & Xxxxx LLP may serve as counsel to any member of the Sellers and their Affiliates may be directly adverse to BuyerSeller Group or any director, the First Closing Acquired Entities manager, member, partner, owner, officer, employee or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, Affiliate thereof in connection with any future disputeslitigation, lawsuitsclaim, actions, proceedings, investigations dispute or other mattersmatter arising out of or relating to this Agreement or the transactions contemplated by this Agreement (including in connection with any matters contemplated by Section 2.4 and Section 2.5), including notwithstanding such representation (or any dispute between Buyercontinued representation) of the Seller, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company or any of its or their respective Affiliates, on the one handSubsidiaries, and each of the Sellers parties hereto hereby consents thereto and waives any conflict of interest arising therefrom or in connection therewith. The parties hereto agree to take the steps necessary to ensure that any privilege attaching as a result of Xxxxxxxx & Xxxxx LLP representing the Company or any of their Subsidiaries in connection with the transactions contemplated by this Agreement shall survive the Closing and shall remain in effect; provided that such privilege from and after the Closing shall be controlled by the Seller. As to any privileged attorney client communications between Xxxxxxxx & Xxxxx LLP and the Company or any of their Subsidiaries prior to the Closing Date (collectively, the “Privileged Communications”), the Buyer and the Company, together with any of their respective Affiliates, on the other handSubsidiaries, successors or with or between any other Personsassigns, with respect to the Transactions, agree that no such party (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, ) may use or rely on any of the attorney-client privilege, attorney work product protection and Privileged Communications in any action or claim against or involving any of the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities parties hereto after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Matson, Inc.)
Legal Representation. (a) It is acknowledged by each of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP (“STB”) has acted as counsel for the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP Company (prior to and including the Closing) (collectively, the “Seller CounselCompany Parties”) to act as their counsel in connection with the Transactionsother transaction documents and the transactions contemplated hereby and thereby (the “Acquisition Engagement”) and, and in that Seller Counsel has connection, not acted as counsel for any other Party Person, including, without limitation, Buyer or any of its Affiliates (including the Company following the Closing). Only the Company Parties shall be considered clients of STB in the Acquisition Engagement. If the Seller so desires, STB shall be permitted, without the need for any future waiver or consent, to represent the Seller after the Closing in connection with any matter related to the Transactions, and that none matters contemplated by any of the other Parties has the status of a client of Seller Counsel for conflict of interest transaction documents or any other purposes as a result thereof. The Sellers disagreement or dispute relating thereto and Buyer hereby agree thatmay in connection therewith represent the Representatives or Affiliates of the Seller in any of the foregoing cases including, without limitation, in the event that any action, dispute, litigation or other adversary proceeding against, with or involving Buyer, the Company following the Closing or any other matter in which of their Representatives or Affiliates.
(b) To the interests extent that communications between Seller, the Company or any of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)STB, on the other hand, are adverserelate to the Acquisition Engagement, arises after such communication shall be deemed to be attorney-client confidences that belong solely to the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent Seller. Neither Buyer nor any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective its Affiliates, including with respect to the First Closing Acquired Entities and Company following the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to (Buyer hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communicationscommunications or the files or work product of STB, or to the files of Seller Counsel, whether or not any Applicable Closing occursextent that they relate to the Acquisition Engagement. Without limiting the generality of the foregoing, Buyer acknowledges and agrees, for itself and on behalf of its Affiliates, including the Company following the Closing, upon and after each Applicable the Closing: (i) the Seller and STB shall be the sole holders of the attorney-client privilege of the Company Parties with respect to the Acquisition Engagement, and neither Buyer nor any of its Affiliates, including the Company following the Closing, shall be a holder thereof; (Aii) to the extent that files or work product of Seller Counsel STB in respect of the Acquisition Engagement constitute property of the clienta client of STB, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) Seller shall hold such property rights of any Company Parties and have the right to waive or modify such property rights, ; and (Biii) Seller Counsel STB shall have no duty whatsoever to reveal or disclose any such attorney-client communications communications, files or files work product to BuyerBuyer or any of its Affiliates, including the First Closing Acquired Entities or Company following the Second Closing Acquired Entities Closing, by reason of any attorney-client relationship between Seller Counsel STB and the First Closing Acquired Entities Company Parties or otherwise; provided that, to the extent any communication is both related and unrelated to the Acquisition Engagement, STB shall provide (and the Second Seller, for and on behalf of the other Company Parties, shall instruct STB to provide) appropriately redacted versions of such communications, files or work product to Buyer or its Affiliates, including the Company following the Closing. Notwithstanding the foregoing, in the event that a dispute arises between any of Buyer or the Company following the Closing Acquired Entities (as applicable) or otherwisetheir Affiliates, on the one hand, and the Seller, on the other hand, concerning the matters contemplated in any of the transaction documents, Buyer, for itself and on behalf of its Affiliates and the Company following the Closing and its Affiliates, agrees that Buyer, the Company following the Closing and their Affiliates shall not offer into evidence or otherwise attempt to use or assert the foregoing attorney-client communications, files or work product against the Seller.
(c) If and to Without limitation of the extentforegoing, at any time subsequent to each Applicable Closingother communication between the Seller, Buyer the Company or any of its Affiliates (including their Affiliates, on the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesone hand, and any Person representing themRepresentative of the Seller, that occurred at the Company or any time of their Affiliates (other than STB) or any other third person, prior to such Applicable the Closing and relating to the Acquisition Engagement shall be deemed confidential information of the Seller, and from and after the Closing, Buyersuch communications shall be deemed to be confidential information that belongs solely to the Seller. Prior to the Closing, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Company shall be entitled to waive transfer possession of such privilege only with communications (including any tangible and intangible copies of such communications) to the consent Seller. Notwithstanding the foregoing, in the event that a dispute arises between any of Buyer or the Company following the Closing or their Affiliates, on the one hand, and the Seller, on the other hand, concerning the matters contemplated in any of the Sellerstransaction documents Buyer, for itself and on behalf of its Affiliates and the Company following the Closing and its Affiliates, agrees that Buyer and the Company following the Closing and their Affiliates shall not offer into evidence or otherwise attempt to be unreasonably withheld, conditioned use or delayedassert the foregoing communications against the Seller.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Borgwarner Inc)
Legal Representation. (a) It is acknowledged by each Each of the Parties parties to this Agreement acknowledges and agrees that the First Closing Acquired EntitiesCravath, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx Swaine & Xxxxxxx Xxxxx LLP (collectively, “Seller Existing Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not may have acted as counsel for any other Party the Sellers, the Transferred Entities or their respective Affiliates in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing this Agreement and the Second Closing Acquired Entities after Transaction (the Second Closing“Acquisition Engagement”), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers Each of the parties to this Agreement acknowledges and Buyer and their respective Affiliates, including with respect to agrees that all confidential communications between the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between BuyerSellers, the First Closing Acquired Transferred Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective AffiliatesExisting Counsel, on the other hand, or with or between in the course of the Acquisition Engagement, and any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attendant attorney-client privilege, attorney work product protection protection, and the expectation of client confidence belongs confidentiality applicable thereto, shall be deemed to belong solely to the Sellers or and their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Affiliates, and may be controlled by not the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Transferred Entities, and shall not pass to or be claimed claimed, held, or used by Buyerthe Buyers or the Transferred Entities upon or after the Closing. Accordingly, the First Buyers shall not have access to any such communications, or to the files of Existing Counsel relating to the Acquisition Engagement, whether or not the Closing Acquired Entities occurs. Without limiting the generality of the foregoing, upon and after the First Closing, (i) to the Second Closing Acquired Entities after extent that files of Existing Counsel in respect of the Second ClosingAcquisition Engagement constitute property of the client, or any of only the Sellers and their respective AffiliatesAffiliates shall hold such property rights, and (ii) Seller Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Buyers or the Transferred Entities by reason of any attorney-client relationship between Existing Counsel and the Transferred Entities or otherwise. If and to the extent that, at any time subsequent to Closing, the Buyers or any of their Affiliates (including after the Closing, the Transferred Entities) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the Transferred Entities or their Affiliates and Existing Counsel that occurred at any time prior to the Closing, the Buyers, on behalf of themselves and their Affiliates (including after the Closing, the Transferred Entities) shall be entitled to waive such privilege only with the prior written consent of the Sellers (such consent not to be unreasonably withheld, delayed or conditioned).
(c) Each of the parties to this Agreement acknowledges and agrees that Existing Counsel may disclose continue to represent the Sellers or their Affiliates in future matters. Accordingly, the Buyers, on behalf of themselves and their Affiliates (including after the Closing, the Transferred Entities), expressly: (i) consents to Existing Counsel’s representation of the Sellers and their Affiliates in any matter, including any post-Closing matter in which the interests of the Buyers or the Transferred Entities or their Affiliates, on the one hand, and the Sellers or their Affiliates, on the other hand, are adverse, including any matter relating to the Transaction, and whether or not such matter is one in which Existing Counsel may have previously advised the Sellers or their Affiliates; and (ii) consents to the disclosure by Existing Counsel to the Sellers or their respective Affiliates of any information learned by Seller Existing Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Transferred Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller or Existing Counsel’s duty of confidentiality. Accordingly.
(d) The Buyers, Buyer on behalf of themselves and its their Affiliates (including after the Closing, the Transferred Entities) further covenant and agree that each shall not have access to assert any such communicationsclaim, or and that it hereby waives any claim, against Existing Counsel in respect of legal services provided to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting Transferred Entities by Existing Counsel in connection with the generality of the foregoing, upon Acquisition Engagement.
(e) Upon and after each Applicable the Closing, (A) the Transferred Entities shall cease to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller with Existing Counsel, unless and to the extent Existing Counsel and is specifically engaged in writing by the First Buyers or the Transferred Entities to represent such company after the Closing. Any such representation by Existing Counsel after the Closing Acquired Entities and shall not affect the Second Closing Acquired Entities (as applicable) or otherwiseforegoing provisions hereof.
(cf) If The Buyers and the Sellers consent to the arrangements in this Section 10.12 and agree to take, and to cause their Affiliates to take, all steps necessary to implement the extent, at any time subsequent intent of this Section 10.12 and not to each Applicable Closing, Buyer take or any cause their Affiliates to take positions contrary to the intent of its Affiliates (including the First Closing Acquired Entities after the First Closing this Section 10.12. The Buyers and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorneySellers further agree that Existing Counsel is a third-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf party beneficiary of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedthis Section 10.12.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each Each of the Parties parties to this Agreement acknowledges and agrees that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxx Xxxx Xxxxxxxx Xxxxxxx LLP (collectively, “Seller CounselBCLP”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not may have acted as counsel for any other Party the Companies and the Sellers and/or their respective Affiliates in connection with this Agreement and the Transactions, and that none Contemplated Transactions (the “Disposition Engagement”).
(b) Each of the other Parties has parties to this Agreement acknowledges and agrees that all confidential communications between the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Companies and the Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and and/or their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)BCLP, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the SellersDisposition Engagement, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to and any attendant attorney-client privilege, attorney work product protection, and expectation of Seller Counsel’s duty of confidentialityclient confidentiality applicable thereto, shall be deemed to belong solely to the Sellers and their Affiliates (other than the Companies), and not the Companies, and shall not pass to or be claimed, held, or used by Buyer or the Companies upon or after the Closing. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller CounselBCLP relating to the Disposition Engagement, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ai) to the extent that files of Seller Counsel BCLP in respect of the Disposition Engagement constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (Bii) Seller Counsel BCLP shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Companies or the Second Closing Acquired Entities Buyer by reason of any attorney-client relationship between Seller Counsel BCLP and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Companies or otherwise.
(c) . Buyer, on behalf of itself and its Affiliates, irrevocably waives any right it may have to discover or obtain information or documentation relating to the Disposition Engagement, to the extent that such information or documentation was subject to an expectation of confidentiality owed by BCLP to the Sellers. Notwithstanding the foregoing, in the event that a dispute arises between Buyer, the Companies or any of their Affiliates, on the one hand, and a third party other than Sellers or any of their Affiliates, on the other hand, the attorney-client privilege, work product protection or other similar privilege or protection may be asserted by the Companies and/or their respective Affiliates to prevent the disclosure of any such communications or advice to such third party. If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities Companies and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the prior written consent of the Sellers, Sellers (such consent not to be unreasonably withheld, conditioned or delayed).
(c) Each of the Parties acknowledges and agrees that BCLP may have acted as counsel for Sellers, the Companies and/or their respective Affiliates in certain matters prior to the Disposition Engagement and that the Sellers reasonably anticipate that BCLP will continue to represent them or their respective Affiliates (other than Companies) in future matters. Accordingly, Buyer on behalf of itself and its Affiliates, and the Companies, expressly consents to BCLP’s representation of the Sellers and/or their Affiliates in connection with any litigation, claim or obligation arising out of or relating to this Agreement, any Ancillary Document or the Contemplated Transactions and waives any conflict of interest arising therefrom.
(d) Buyer, on behalf of itself and its Affiliates, and each Company further covenants and agrees that each shall not assert any claim, and that it hereby waives any claim, against BCLP in respect of legal services provided to the Companies by BCLP in connection with the Disposition Engagement.
(e) Upon and after the Closing, the Companies shall cease to have any attorney-client relationship with BCLP, unless and to the extent BCLP is specifically engaged in writing by either Company to represent such Company after the Closing and such engagement either (i) involves no conflict of interest with respect to the Sellers and/or their Affiliates or (ii) the Sellers and/or their Affiliates, as applicable, consent in writing at the time to such engagement. Any such representation by BCLP after the Closing shall not affect the foregoing provisions hereof.
(f) Buyer and the Companies consent to the arrangements in this Section 10.19 and agree to take, and to cause their Affiliates to take, all steps necessary to implement the intent of this Section 10.19 and not to take or cause their Affiliates to take positions contrary to the intent of this Section 10.19. Buyer and the Companies further agree that BCLP and its partners and employees are third-party beneficiaries of this Section 10.19.
Appears in 1 contract
Legal Representation. Purchaser and the Company hereby agree, on their own behalf and on behalf of their directors, members, partners, officers, employees and Affiliates, and each of their successors and assigns (all such parties, the “Waiving Parties”), that Weil, Gotshal & Xxxxxx LLP (or any successor) may represent (a) It is acknowledged by each any or all of the Parties that Securityholders (the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller CounselGroup”) to act as their counsel or any director, member, partner, officer, employee or Affiliate of the Seller Group, or (b) the Representative, in each case in connection with any dispute, litigation, claim, proceeding or obligation arising out of or relating to this Agreement, including under Article 7, any agreements contemplated by this Agreement or the Transactionstransactions contemplated hereby or thereby (any such representation, the “Post-Closing Representation”) notwithstanding its representation (or any continued representation) of the Company and/or any of its Subsidiaries, and that Seller Counsel has each of Purchaser and the Company on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not acted as counsel for assert) any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofobjection arising therefrom or relating thereto. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing Purchaser and the Second Closing Acquired Entities after Company acknowledge that the Second Closing)foregoing provision applies whether or not Weil, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect Gotshal & Xxxxxx LLP provides legal services to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company or any of its or their respective Affiliates, on Subsidiaries after the one hand, Closing Date. Each of Purchaser and the Sellers or any of their respective AffiliatesCompany, on for itself and the other handWaiving Parties, or with or between any other Persons, with respect to the Transactions, (i) as to hereby irrevocably acknowledges and agrees that all communications among between the Seller Counsel, the First Closing Acquired Entities (with respect to communications Group and their counsel prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, including Weil, Gotshal & Xxxxxx LLP, made in connection with the Second Closing Acquired Entities after negotiation, preparation, execution, delivery and performance under this Agreement, any agreements contemplated by this Agreement or the Second Closingtransactions contemplated hereby or thereby, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access matter relating to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon are privileged communications between the Seller Group and such counsel and from and after each Applicable the Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyerneither Purchaser, the First Closing Acquired Entities Company, nor any Person purporting to act on behalf of or through Purchaser or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer Company or any of its Affiliates (including the First Closing Acquired Entities Waiving Parties, will seek to obtain the same by any process. From and after the First Closing Closing, each of Purchaser and the Second Closing Acquired Entities after Company, on behalf of itself and the Second Closing) shall have the right to Waiving Parties, waives and will not assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities Weil, Gotshal & Xxxxxx LLP and the Second Closing Acquired Entities (as applicable) Company, its Subsidiaries or their respective Affiliates, and any Person representing them, that occurred at any time in the Seller Group occurring prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First in connection with any Post-Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedRepresentation.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company) acknowledges and the Sellers have retained Xxxxxx agrees that Xxxxxx, Xxxx & Xxxxxxx Xxxxxxxx LLP (collectively, “Seller CounselXxxxxx Xxxx”) to act has acted as their counsel for the Seller, the Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxxxx Xxxx has not acted as counsel for any other Party Person, including the Buyer.
(b) Only the Seller, the Company and their respective Affiliates shall be considered clients of Xxxxxx Xxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Company) acknowledges and agrees that any disputeall confidential communications between the Seller, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Xxxxxx Xxxx, on the other hand, in the course of the Acquisition Engagement, and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Seller and its Affiliates (other than the Company), and not to the Company, and shall not pass to or be claimed, held, or used by the Buyer or the Company upon or after the Closing. Accordingly, the Buyer shall not have access to any such communications, or to the files of Xxxxxx Xxxx relating to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of Xxxxxx Xxxx in respect of the Acquisition Engagement constitute property of the client, only the Seller and its Affiliates shall hold such property rights and (ii) Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Company or the Buyer by reason of any attorney-client relationship between Xxxxxx Xxxx and the Company or otherwise; provided, however, that notwithstanding the foregoing, Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisors of the Seller and its Affiliates; provided that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications). The Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing, the Company) irrevocably waives any right it may have to discover or obtain information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, work product protection or other expectation of confidentiality owed to the Seller and/or its Affiliates. If and to the extent that, at any time subsequent to Closing, the Buyer or any of its Affiliates (including after the Closing, the Company) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the Company or its Affiliates and any Person representing them that occurred at any time prior to the Closing, 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 Seller (such consent not to be unreasonably withheld).
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) acknowledges and agrees that Xxxxxx Xxxx has acted as counsel for the Seller, the Company and their respective Affiliates for several years and that the Seller reasonably anticipates that Xxxxxx Xxxx will continue to represent it and/or its Affiliates in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) expressly (i) consents to Xxxxxx Xxxx’x representation of the Seller and/or its Affiliates and/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 Second Closing Acquired Entities after Company, on the Second Closing)one hand, and the Seller or any of its Affiliates, on the other hand, are adverse, arises after including any matter relating to the Applicable Closing between Buyertransactions contemplated by this Agreement, and whether or not such matter is one in which Xxxxxx Xxxx may have previously advised the Seller, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its Company or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose consents to the Sellers disclosure by Xxxxxx Xxxx to the Seller or their respective its Affiliates of any information learned by Seller Counsel Xxxxxx Xxxx in the course of its representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s or Xxxxxx Xxxx’x duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(cd) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, The Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing, the Company) further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Company or its Affiliates by Xxxxxx Xxxx in connection with this Agreement or the transactions contemplated hereby.
(e) From and after the Closing, the Company shall cease to have any attorney-client relationship with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is expressly engaged in writing by the Company to represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Second Closing Acquired Entities Seller and/or any of its Affiliates or (ii) the Seller and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxxxx Xxxx after the Second Closing)Closing shall not affect the foregoing provisions hereof. Furthermore, Xxxxxx Xxxx, in its sole discretion, shall be entitled permitted to withdraw from representing the Company in order to represent or continue so representing the Seller.
(f) The Seller, the Company and the Buyer consent to the arrangements in this Section 11.19 and waive such privilege only any actual or potential conflict of interest that may be involved in connection with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedany representation by Xxxxxx Xxxx permitted hereunder.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Blueknight Energy Partners, L.P.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired EntitiesBuyer, Intermediate, Merger Sub, the Second Closing Acquired Entities Company and the Sellers have retained their respective Affiliates acknowledge and agree that Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel Xxxx has not acted as counsel for any other Party in connection with the Transactions, and that none some of the other Parties has stockholders of the status of a client of Seller Counsel Company, the Company and their respective Affiliates for conflict of interest or any other purposes as a result thereof. The Sellers several years and Buyer hereby agree that, in the event of any post-Closing disputes between the parties hereto, such stockholders of the Company reasonably anticipate that Xxxxxx Xxxx will represent them in such matters. Accordingly, Buyer, Intermediate, Merger Sub, the Company and their respective Affiliates expressly consent to Xxxxxx Xxxx’x representation of such stockholders of the Company in any dispute, or any other post-Closing matter in which the interests of Sellers Buyer, Intermediate, Merger Sub and their respective Affiliates, the Company on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after stockholders of the First Closing and the Second Closing Acquired Entities after the Second Closing)Company, on the other hand, are adverse, arises after the Applicable Closing between Buyerwhether or not such matter is one in which Xxxxxx Xxxx may have previously advised such stockholders, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its Company or their respective Affiliates; provided, on however, that this sentence shall not apply if Xxxxxx Xxxx is at that time handling ongoing matters for Buyer, Intermediate, Merger Sub, the one handCompany or any Subsidiary of the Company. Furthermore, Buyer, Intermediate, Merger Sub and the Sellers Company irrevocably waive any right they may have to discover or any of their respective Affiliates, on the other hand, obtain information or with or between any other Persons, with respect documentation relating to the Transactionsrepresentation of such stockholders of the Company by Xxxxxx Xxxx in the transactions contemplated hereby, (i) to the extent that such information or documentation was privileged as to all communications among Seller Counselsuch stockholders; provided, however, that Buyer, Intermediate, Merger Sub, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers Company or their respective Affiliates any are not prohibited from obtaining or using information learned that is owned by Seller Counsel the Company or is in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwisepossession.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by Each Party acknowledges that (i) each of the Parties that the First Closing Acquired EntitiesSponsor Partners, the Second Closing Acquired Entities Seller and the Sellers Acquired Companies have retained Xxxxxx & Xxxxxxx Xxxx Xxxxxxxx LLP (collectively, “Seller CounselXxxx Xxxxxxxx”) to act as their its counsel in connection with the TransactionsTransaction Matters as well as other past and ongoing matters, and that Seller Counsel (ii) Xxxx Xxxxxxxx has not acted as counsel for any other Party Person in connection with the TransactionsTransaction Matters, and that none of (iii) no Person other than the other Parties Sponsor Partners, Seller and the Acquired Companies has the status of a Xxxx Xxxxxxxx client of Seller Counsel for conflict of interest or any other purposes purpose as a result thereof. The Sellers Buyer (i) waives and Buyer hereby agree thatwill not assert, in and will cause each of its Subsidiaries (including, after Closing, the event that Acquired Companies) to waive and not assert, any disputeconflict of interest relating to Xxxx Xxxxxxxx’x representation after the Closing of the Sponsor Partners, Seller or any other matter in which the interests of Sellers and their respective AffiliatesAffiliates in any matter, on whether involving the one handTransaction Matters (including any litigation, arbitration, mediation, dispute resolution procedure or other proceeding) or otherwise, and Buyer (ii) consents to, and will cause each of its Affiliates Subsidiaries (including the First Closing Acquired Entities including, after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingCompanies) to consent to, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such disputerepresentation, even though in each case (x) the interests of the Sellers and Sponsor Partners, Seller and/or their respective Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities Buyer or the Second Closing Acquired EntitiesCompanies, and even though Seller Counsel formerly (y) Xxxx Xxxxxxxx may have represented the First Closing any Acquired Entities or the Second Closing Acquired Entities Company in any matter a substantially related to such disputematter, and/or (z) Xxxx Xxxxxxxx may be handling other ongoing matters for Buyer or any of the Acquired Companies.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree agrees that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, neither Buyer nor any of its Subsidiaries (including, after Closing, the Second Closing Acquired Entities Companies) will have any right to access or control any of Xxxx Xxxxxxxx’ records relating to or affecting any Transaction Matter, which will be the property of (and be controlled by) the Sponsor Partners and Seller. In addition, Buyer agrees that it would be impractical to remove all Attorney-Client Communications from the records (including e-mails and other electronic files) of the Acquired Companies. Accordingly, Buyer will not, and will cause each of its Subsidiaries (including, after the Second Closing, or the Acquired Companies) not to, use any Attorney-Client Communication remaining in the records of its or their respective Affiliatesany Acquired Company after Closing in a manner that may be adverse to the Sponsor Partners, on the one hand, and the Sellers Seller or any of their respective Affiliates.
(c) Buyer agrees, on its own behalf and on behalf of its Subsidiaries (including, after Closing, the other handAcquired Companies), or with or between any other Persons, with respect to the Transactions, that from and after Closing (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection all other evidentiary privileges, and the expectation of client confidence belongs solely as to all Attorney-Client Communications are hereby assigned to and shall belong to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Sponsor Partners and the Second Closing Acquired Entities after the Second Closing), Seller and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall will not pass to or be claimed by BuyerBuyer or any of its Subsidiaries (including, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities Companies) and (ii) the Sponsor Partners and Seller, together, will have the exclusive right to control, assert, or waive the attorney-client privilege, any other evidentiary privilege, and the expectation of client confidence with respect to such Attorney-Client Communications. Accordingly, Buyer will not, and will cause each of its Subsidiaries (including, after the Second Closing, the Acquired Companies) not to, (x) assert any attorney-client privilege, other evidentiary privilege, or expectation of client confidence with respect to any Attorney-Client Communication, except in the event of a post-Closing dispute with a Person that is not the Sponsor Partners, Seller or any of their respective Affiliates; or (y) take any action which could cause any Attorney-Client Communication to cease being a confidential communication or to otherwise lose protection under the attorney-client privilege or any other evidentiary privilege, including waiving such protection in any dispute with a Person that is not the Sponsor Partners, Seller or any of their respective Affiliates. Furthermore, Buyer agrees, on its own behalf and on LEGAL_US_E # 161486834.17 behalf of each of its Subsidiaries (ii) including, after Closing, the Acquired Companies), that in the event of a dispute between the Sponsor Partners, Seller Counsel may disclose or any of their respective Affiliates on the one hand and Buyer or any of the Acquired Companies on the other hand arising out of or relating to any matter in which Xxxx Xxxxxxxx jointly represented both parties, neither the attorney-client privilege, the expectation of client confidence, nor any right to any other evidentiary privilege will protect from disclosure to the Sellers Sponsor Partners, Seller or any of their respective Affiliates any information learned by Seller Counsel in or documents developed or shared during the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseXxxx Xxxxxxxx’x joint representation.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sensata Technologies Holding PLC)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for In any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest Legal Proceeding between Buyer or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingCompany, on the one hand, and the Sellers and their respective AffiliatesSeller, on the other hand, Seller Counsel may represent wherein Buyer asserts or prosecutes any claim under, or all otherwise seeks to enforce, this Agreement, Buyer agrees in connection with such Legal Proceeding to consent to the representation of the Sellers Seller and their its Affiliates in such disputeby Holland & Knight, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly notwithstanding that Holland & Knight may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Seller or any of its Affiliates (including the Acquired Companies) as counsel in connection with the negotiation and documentation of this Agreement and the consummation of the Transactions. This consent extends to Holland & Knight representing the Seller against Buyer or the Acquired Companies in litigation, arbitration or mediation in connection with this Agreement or the Transactions. In addition, all attorney-client privileged communications occurring prior to the Closing between the Seller, the Acquired Companies and their respective AffiliatesSubsidiaries, on the one hand, and Holland & Knight, on the other hand, directly related to the negotiation and documentation of this Agreement or the consummation of the Transactions shall be deemed to be attorney-client confidences that belong solely to the Seller (and not the Acquired Companies) for purposes of any Legal Proceeding between Buyer or any Acquired Company, on the one hand, and the Sellers or any of their respective AffiliatesSeller, on the other hand, or with or between any other Persons, with respect to hand (the Transactions, (i) as to all communications among “Seller Counsel, the First Pre-Closing Acquired Entities (with respect to communications prior to the First ClosingCommunications”), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, neither the Acquired Companies nor Buyer and its Affiliates shall not have access to any such communications, Seller Pre-Closing Communications or to the files of Seller Counsel, whether or not any Applicable Closing occursHolland & Knight directly relating thereto from and after the Closing. Without limiting the generality of the foregoing, upon from and after each Applicable the Closing, (Ai) the Seller and its Affiliates (and not the Acquired Companies) shall be the sole holders of the attorney-client privilege with respect to the Seller Pre-Closing Communications, and the Acquired Companies shall not be a holder thereof, (ii) to the extent that files of Holland & Knight in respect of such Seller Counsel Pre-Closing Communications constitute property of the client, only the Sellers Seller and their its respective Affiliates (other than and not the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompanies) shall hold such property rights, rights and (Biii) Seller Counsel Holland & Knight shall have no duty whatsoever to reveal or disclose any such attorneySeller Pre-client communications or files Closing Communications to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities Companies by reason of any attorney-client relationship between Seller Counsel Holland & Knight and the First Acquired Companies or otherwise. As to Seller Pre-Closing Acquired Entities Communications, the Buyer and the Second Seller agree that no Person may use or rely on any of the Seller Pre-Closing Acquired Entities (as applicable) Communications in any action or otherwise.
(c) If and to claim against or involving any of the extent, at any time subsequent to each Applicable Closing, Buyer parties hereto or any of its Affiliates (including the First Closing Acquired Entities their respective Non‑Recourse Parties after the First Closing Closing. Each of the Buyer and the Second Closing Seller further agrees that, on its own behalf and on behalf of its Subsidiaries (including, with respect to the Buyer, the Acquired Entities after Companies), Holland & Knight’s retention by the Second Acquired Companies shall be deemed completed and terminated, and the Acquired Companies shall cease to have any attorney-client relationship with Holland & Knight, without any further action by any Person effective as of the Closing) ; provided, however, the cessation of the attorney-client relationship shall have the right to assert not be construed or waive interpreted as a waiver of any attorney-client privilege with respect by any Acquired Company. Notwithstanding anything to the contrary contained herein, if a dispute arises between Buyer or any communication between Acquired Company, on the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesone hand, and a third party (other than the Seller) after the Closing, any Person representing themAcquired Company may assert the attorney-client privilege to prevent disclosure of attorney-client communications by Holland & Knight to such third party; provided, however, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing no Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Company may waive such privilege only with without the prior written consent of the SellersSeller. Notwithstanding the foregoing, (x) any communications or advice of Holland & Knight that was made prior to the Closing with or to any Acquired Company regarding legal matters involving the business of the Acquired Companies and that were not made or given for the purpose of the negotiation and documentation of this Agreement and the consummation of the Transactions shall be the property of the Acquired Companies from and after the Closing and (y) Seller may not waive any legal privilege covering any Seller Pre-Closing Communications vis-à-vis a third party without the prior written consent of Buyer and the Company. The Buyer hereby acknowledges and confirms that they have had the opportunity to review and obtain adequate information regarding the significance and risks of the terms and conditions of this Section 9.10, including the opportunity to discuss with counsel such matters and reasonable alternatives to such terms. This Section 9.10 is for the benefit of the Seller and Holland & Knight, and Holland & Knight is an intended third party beneficiary of this Section 9.10. This Section 9.10 shall be unreasonably withheldirrevocable, conditioned and no term of this Section 9.10 may be amended, waived or delayedmodified, without the prior written consent of the Seller and Holland & Knight. The covenants and obligations set forth in this Section 9.10 shall survive for 10 years following the Closing Date.
Appears in 1 contract
Samples: Equity Purchase Agreement (Laureate Education, Inc.)
Legal Representation. (a) It is acknowledged by each of In any dispute or Proceeding arising after the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel under or in connection with the Transactions, and that Seller Counsel has not acted as counsel for this Agreement or any other Party in connection with the Transactions, and that none of the other Parties has agreements contemplated hereby, the status parties agree that any of a client of the Sellers shall have the right, at its election, to retain any Law Firm to represent such Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers in such matter, and Buyer hereby agree thatand the Company (on behalf of themselves, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one handdirectors, managers, officers, employees and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers representatives and their respective Affiliates, on the other hand, Seller Counsel may represent successors and assigns) hereby irrevocably waive and consent to any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities representation in any matter substantially related to such disputematter.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to Each of the First Closing Acquired Entities parties further agrees that all communications solely between any Law Firm and the Second Closing Acquired Entities, acknowledge Company or any Law Firm and agree that, any Seller in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, this Agreement or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other handagreements contemplated hereby, or together with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilegeprivilege related thereto (if any), attorney work product protection and the expectation of client confidence belongs solely related thereto (if any) and all other rights to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)any evidentiary privilege related thereto, and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)belong to such Seller, and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company or any of their respective its Affiliates.
(c) If the transactions contemplated by this Agreement and the other agreements contemplated hereby are consummated:
(i) the Company shall have no right of access to or control over any of the records of the Law Firms related to such transactions, which shall become the property of (and be controlled by) the Sellers, as applicable; and
(ii) Seller Counsel it would be impracticable to remove from the records (including emails and other electronic files) of the Company any communications with or among any Law Firm, the Company and any Seller. The Company and Buyer agree not to access, review or otherwise use, examine or rely upon such communications that may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel remain in the course of its representation records of the SellersCompany, and the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to parties agree that no attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access or other privilege or protection is waived or intended to any be waived by allowing such communications, or material to remain in the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseCompany.
(cd) If and to Furthermore, in the extent, at event of a dispute between any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not on the one hand, and the Company, on the other hand, arising out of or relating to be unreasonably withheldany matter in which any Law Firm acted for them both, conditioned none of the attorney-client privilege, the expectation of client confidence or delayedany other rights to any evidentiary privilege will protect from disclosure to the Sellers, as applicable, any information or documents developed or shared during the course of either Law Firm’s joint representation of the Sellers and the Company.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each of the Parties Purchaser hereby acknowledges that the First Closing Acquired EntitiesSeller, the Second Closing Acquired Entities its equityholders, and the Sellers Companies have retained been represented by Benesch, Friedlander, Xxxxxx & Xxxxxxx LLP (collectively, “Seller CounselBenesch”) to act as their counsel in connection with this Agreement and the Transactions, transactions contemplated hereby and that Benesch has received confidential information pertaining to Seller Counsel has not acted as counsel for any other Party and the Companies in connection with such representation. Purchaser, on behalf of itself and its Affiliates (including, after the TransactionsClosing, the Companies), hereby (a) acknowledges and agrees that, notwithstanding Xxxxxxx’x prior representation of Seller and the Companies and Xxxxxxx’x receipt of confidential information, Benesch may represent Seller, its equityholders, and their Affiliates after the Closing in connection with matters arising out of or related to this Agreement or the transactions contemplated hereby, including in connection with any litigation matter arising hereunder which may or may not be adverse to the Companies or Purchaser and (b) waives any claim it has or may have that none of the other Parties Benesch has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofis otherwise prohibited from engaging in such representation. The Sellers and Buyer hereby agree Purchaser further agrees that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications subject to attorney-client privilege among Seller CounselBenesch, the First Closing Acquired Entities (with respect to communications prior Companies, Seller and its equityholders that relate in any way to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliatestransactions contemplated by this Agreement, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely belong to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Seller and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Seller and the Second Closing Acquired Entities after the Second Closing), its equityholders and shall will not pass to or be claimed by BuyerPurchaser or the Companies. Notwithstanding the foregoing, in the event that a dispute arises among Purchaser, the First Closing Acquired Entities Companies, and a Person other than a party to this Agreement after the First Closing, the Second Closing Acquired Entities after Companies may assert the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, privilege to prevent disclosure of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access confidential communications with Benesch to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rightsthird party, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or may not waive any attorney-client privilege with respect to any communication between such communications without the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedPurchaser.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each Each of the Parties parties hereby agrees, on its own behalf and on behalf of its directors, shareholders, officers, employees and Affiliates, that following consummation of the First Closing Acquired Entitiestransactions contemplated hereby, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP Fxxxxx XxxXxxx (collectively, “Seller Counsel”or any successor) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted may serve as counsel for any other Party in connection with to the TransactionsParent Representative, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any disputeParent, or any other matter in which the interests of Sellers and their respective Affiliatesdirector, on the one handstockholder, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)officer, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing employee or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all Affiliate of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, Parent in connection with any future disputeslitigation, lawsuits, actions, proceedings, investigations claim or other matters, including any dispute between Buyer, obligation arising out of or relating to this Agreement or the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one handtransactions contemplated by this Agreement, and each of the Sellers or parties consents thereto and waives any conflict of their respective Affiliatesinterest arising therefrom, on the other handand each of such parties shall cause its Affiliates to consent to and waive any conflict of interest arising from such representation. The parties further agree that, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller CounselFxxxxx XxxXxxx, the First Closing Acquired Entities (Parent Representative and/or Parent in connection with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliatestransactions contemplated by this Agreement, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence (and the right to waive or assert such privilege) belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Parent Representative and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Parent Representative and shall not pass to or be claimed by BuyerParent or the Surviving Entity or any of Parent’s Subsidiaries. The parties agree that Fxxxxx XxxXxxx shall not, without the consent of the Parent Representative, be required to disclose to any Person, any advice given in connection with this Agreement and the transactions contemplated hereby.
(b) Each of the parties hereby agrees, on its own behalf and on behalf of its directors, shareholders, officers, employees and Affiliates, that following consummation of the transactions contemplated hereby, Cxxxx Xxxx (or any successor) may serve as counsel to the Company Representative, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second ClosingCompany Stockholders, or any Company officers, directors, members, agents or representatives in connection with any litigation, claim or obligation arising out of their respective Affiliatesor relating to this Agreement or the transactions contemplated by this Agreement, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation each of the Sellersparties consents thereto and waives any conflict of interest arising therefrom, and each of such parties shall cause its Affiliates to consent to and waive any conflict of interest arising from such representation. The parties further agree that, as to all communications among Cxxxx Xxxx, the First Closing Acquired EntitiesCompany Representative and/or Company in connection with the transactions contemplated by this Agreement, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities expectation of client confidence (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled right to waive or assert such privilege only with privilege) belongs to the Company Representative and may be controlled by the Company Representative and shall not pass to or be claimed by Parent or the Surviving Entity or any of Parent’s Subsidiaries. The parties agree that Cxxxx Xxxx shall not, without the consent of the SellersCompany Representative, not be required to be unreasonably withhelddisclose to any Person, conditioned or delayedany advice given in connection with this Agreement and the transactions contemplated hereby.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company and the Sellers have retained Xxxxxx Company Subsidiaries) acknowledges and agrees that Ropes & Xxxxxxx Xxxx LLP (the “Seller Party Transaction Counsel”) has acted as counsel for the Seller, the Company and, where applicable, their respective affiliates in connection with this Agreement and the transactions contemplated hereby (collectively, the “Seller CounselAcquisition Engagement”) to act as their counsel in connection with the Transactions), and that the Seller Party Transaction Counsel has not acted as counsel for any other Person with respect to the Acquisition Engagement, including the Buyer.
(b) Only the Seller, the Company and their respective Affiliates, as applicable, will be considered clients of the Seller Party Transaction Counsel in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Company), acknowledges and agrees that any disputeall confidential communications between the Seller, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Seller Party Transaction Counsel, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attendant attorney-client privilege, attorney work product protection and the expectation of client confidence belongs confidentiality applicable thereto, will be deemed to belong solely to the Sellers or their Seller and its Affiliates (other than the First Closing Acquired Entities Company and the Company Subsidiaries) and not the Company or any of the Company Subsidiaries, and will not pass to or be claimed, held or used by the Buyer or the Company upon or after the First Closing, in each case to the extent relating to the Acquisition Engagement. Accordingly, the Buyer will not have access to any such communications, or to the files of the Seller Party Transaction Counsel, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and the Second Closing Acquired Entities after the Second Closing), (i) to the extent that files of the Seller Party Transaction Counsel constitute client property and may be controlled by to the Sellers or their extent that such files relate to the Acquisition Engagement, only the Seller and its Affiliates (other than the First Closing Acquired Entities Company or any of the Company Subsidiaries) will hold such property rights and (ii) the Seller Party Transaction Counsel will have no duty whatsoever to reveal or disclose any such attorney-client communications or files, in each case to the extent related to the Acquisition Engagement, to the Company, any of the Company Subsidiaries or the Buyer by reason of any attorney-client relationship between the Seller Party Transaction Counsel and the Company or any of the Company Subsidiaries or otherwise; provided, that, notwithstanding the foregoing, the Seller Party Transaction Counsel will not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisors of the Seller and its Affiliates who are instructed to maintain the confidence of such attorney-client communications). If and to the extent that, at any time subsequent to the Closing, the Buyer or any of its Affiliates (including after the First Closing, the Company and the Company Subsidiaries) has the right to assert or waive any attorney-client privilege with respect to any communication between the Company or its Affiliates and any Person representing any of them that occurred at any time prior to the Closing and to the Second Closing Acquired Entities extent relating to the Acquisition Engagement, the Buyer, on behalf of itself and its Affiliates (including after the Second Closing, the Company and the Company Subsidiaries) will be entitled to waive such privilege only with the prior written consent of the Seller (not to be unreasonably withheld, conditioned or delayed).
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company and the Company Subsidiaries), acknowledges and shall not pass agrees that the Seller Party Transaction Counsel has acted as counsel for the Seller, the Company, and their respective Affiliates, as applicable, and may continue to or be claimed by represent the Seller and/or its Affiliates (other than the Company and the Company Subsidiaries), as applicable, in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company and the Company Subsidiaries), expressly (i) consents to the Seller Party Transaction Counsel’s representation of the Seller and its Affiliates and/or any of their respective agents (if any of the foregoing Persons so desire) in any matter, including any post-Closing matter in which the interests of the Buyer, the First Closing Acquired Entities after Company and the First ClosingCompany Subsidiaries, on the one hand, and the Seller and its Affiliates, as applicable, on the other hand, are adverse, including any matter relating to the transactions contemplated by this Agreement, and whether or not such matter is one in which the Seller Party Transaction Counsel may have previously advised the Seller, the Second Closing Acquired Entities after the Second ClosingCompany, or any of their respective Affiliates, as applicable and (ii) Seller Counsel may disclose consents to the Sellers or their respective Affiliates disclosure by the Seller Party Transaction Counsel to the Seller and its Affiliates, of any information learned by the Seller Party Transaction Counsel in the course of its representation of the SellersSeller, the First Closing Acquired EntitiesCompany, the Second Closing Acquired Entities or any of their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of protection or the Seller Party Transaction Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(cd) If The Seller, the Company and the Buyer consent to the extentarrangements in this Section 10.16 (Legal Representation), at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege actual or potential conflict of interest that may be involved in connection with respect to any communication between representation by the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSeller Party Transaction Counsel permitted hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Rexford Industrial Realty, Inc.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Company Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP, Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLP, Xxx Xxxx Xxxxxxx LLP, XxXxxxxxx Will & Xxxxx and Xxxxxxxxxx & Xxxxx LLP (collectively, “Seller Sellers’ Counsel”) to act as their counsel in connection with the Transactions, transactions contemplated hereby and that Seller Sellers’ Counsel has not acted as counsel for any other Party in connection with the Transactions, transactions contemplated hereby and that none of the other Parties has the status of a client of Seller any of Sellers’ Counsel for conflict of interest or any other purposes as a result thereof. The It is likewise acknowledged by the Parties that that Buyers or their Affiliates (for the avoidance of doubt, excluding the Company Entities) may have the status of a client of Sellers’ Counsel for conflict of interest or other purposes by virtue of representation thereby not in connection with either (x) the transactions contemplated hereby or (y) the representation by Sellers’ Counsel of the Company Entities prior to the Closing. Subject to the following sentence, Sellers and Buyer Buyers hereby agree that, in the event that any dispute, dispute arising out of this Agreement or the other Transaction Documents or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer Buyers and its their Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), on the other hand, are adverse, arises after the Applicable Closing between Buyer, any Buyer or any of the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingCompany Entities, on the one hand, and the Sellers and their respective Affiliates, on the other handhand (any such dispute, Seller a “Potential Conflict Dispute”), neither Buyers nor their Affiliates (including the Company Entities) will disqualify, or in any way attempt to disqualify (including by asserting that Sellers’ Counsel may represent have a conflict of interest that requires a waiver by Buyer or its Affiliates), Sellers’ Counsel from representing any or all of the Sellers and their Affiliates in such disputePotential Conflict Dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, any Buyer or any of the First Closing Acquired Entities or the Second Closing Acquired Company Entities, and even though Seller on the basis that Sellers’ Counsel formerly may (i) may, prior to the Closing, have represented one or more of the First Closing Acquired Entities or the Second Closing Acquired Company Entities in any matter substantially related to such dispute.Potential Conflict Dispute (for the avoidance of doubt, whether in connection with the transactions contemplated hereby or otherwise) or (ii) has represented or continues to represent any of the Company Entities with respect to the Retained Assets or Retained Liabilities. For the avoidance of doubt, to the extent that Buyers or their Affiliates have the status of a client of any of Sellers’ Counsel by virtue of any representation thereof other than as described in clauses (i) or (ii) of the preceding sentence, either prior to or after the Closing Effective Date, and, as a result of such status, Buyers or their Affiliates have a right to disqualify such Sellers’ Counsel (including by Buyers or their Affiliates exercising a right not to waive Sellers’ Counsel’s conflict of interest in a Potential Conflict Dispute if such right exists), such right to disqualify Sellers Counsel from representing any or all of Sellers and their Affiliates in a Potential Conflict Dispute shall not be affected by this
(b) The Sellers and Buyer Buyers and their respective Affiliates, including following the Closing with respect to the First Closing Acquired Entities and the Second Closing Acquired Company Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between BuyerBuyers, the First Closing Acquired Company Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or and/or any of its or their respective Affiliates, on the one hand, and the any of Sellers or and/or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactionstransactions contemplated by this Agreement or otherwise, (i) as to all communications among Seller Sellers’ Counsel, any of the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing)Company Entities, the Sellers or and/or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their applicable Seller and/or its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), and may be controlled by the Sellers such Seller or their its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), and shall not pass to or be claimed by BuyerBuyers, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second ClosingCompany Entities, or any of their respective Affiliates, Affiliates and (ii) Seller Sellers’ Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Sellers’ Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Company Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller or Sellers’ Counsel’s duty of confidentiality. Accordingly, Buyer Buyers and its their Affiliates shall not have access to any such communications, or to the files of Seller Sellers’ Counsel, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (A) to the extent that files of Seller Sellers’ Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (B) Seller Sellers’ Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Buyers or the Second Closing Acquired Company Entities by reason of any attorney-client relationship between Seller Sellers’ Counsel and the First Closing Acquired Company Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer Buyers or any of its their Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Company Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, each Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), shall be entitled to waive such privilege only with the prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
(d) Sellers’ Counsel may rely on this Section 11.12.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Legal Representation. Buyer, on behalf of itself and its Affiliates (a) It is acknowledged by each of including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Transferred Entities), acknowledges and the Sellers have retained agrees that Squire Xxxxxx & Xxxxxxx Xxxxx (US) LLP (collectively, “Seller CounselSPB”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not may have acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)including, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect prior to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, Transferred Entities) in certain matters and the Sellers or any of their respective Affiliates, on the that Seller reasonably anticipates that SPB will continue to represent them and/or such other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates parties (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (iiTransferred Entities) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentialityfuture matters. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities including, after the First Closing, the Transferred Entities), expressly: (a) consents to SPB’s representation of Seller and its Affiliates in any post-Closing matter in which the interests of Buyer and the Transferred Entities, on the one hand, and Seller or its Affiliates, on the other hand, are adverse, including, any matter relating thereto; and (b) consents to the disclosure by SPB to Seller or its Affiliates of any information learned by SPB in the course of its representation of Seller, the Transferred Entities or their respective Affiliates. Furthermore, Buyer, on behalf of itself and its Affiliates (including, after the Closing, the Transferred Entities), irrevocably waives any right it may have to discover or obtain information or documentation relating to the representation of Seller or its Affiliates by SPB in the Acquisition, to the extent that such information or documentation was privileged as to Seller or its Affiliates. Upon and after the Closing, the Transferred Entities shall cease to have any attorney-client relationship with SPB, unless and to the extent SPB is specifically engaged in writing by any Transferred Entity to represent such Person after the Closing and such engagement either (i) involves no conflict of interest with respect to Seller or its Affiliates or (ii) Seller or its Affiliates, as applicable, consent in writing at the Second Closing Acquired Entities time to such engagement. Any such representation by SPB after the Second Closing), Closing shall be entitled to waive such privilege only with not affect the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedforegoing provisions hereof.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Ashland Global Holdings Inc)
Legal Representation. (a) It is acknowledged by each of the Parties The Parent and Parent Sub agree and acknowledge that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller CounselXxxxxx”) to act as their counsel has represented the Company and InnoHold in connection with the Transactions, Transactions and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofRelated Documents. The Sellers Parent (on its behalf and Buyer hereby agree on behalf of its Affiliates) further agrees that, notwithstanding anything in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect this Agreement to the First Closing Acquired Entities and the Second Closing Acquired Entitiescontrary, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counselany of Xxxxxx, the First Closing Acquired Entities Company and InnoHold (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or including any of their respective Affiliatesdirectors, officers, members, managers or employees) that relate exclusively to this Agreement or the Transactions and prior agreements or transactions of a similar nature, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Company and the Second Closing Acquired Entities after the Second Closing), InnoHold and may shall be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Company and the Second Closing Acquired Entities after the Second Closing), InnoHold and shall not pass to or be claimed by Buyerthe Parent or any of its Affiliates. Notwithstanding anything to the contrary contained herein, in the event that after the Closing a dispute arises between the Parent or any of its agents or Affiliates and a Person other than the Parent or any of its agents or Affiliates, then the Parent or any of its agents or Affiliates, as applicable, may assert the attorney-client privilege to prevent disclosure of confidential communications to or from Xxxxxx.
(b) The Company and InnoHold agree and acknowledge that Ellenoff Xxxxxxxx & Schole LLP (“EGS”) has represented the Parent and the Merger Sub in connection with the Transactions and the Related Documents. The Company and InnoHold (on their own behalf and on behalf of their respective Affiliates) further agree that, notwithstanding anything in this Agreement to the contrary, as to all communications among any of EGS, the First Closing Acquired Entities Parent, and the Merger Sub (including any of their respective directors, officers, members, managers or employees) that relate exclusively to this Agreement or the Transactions and prior agreements or transactions of a similar nature, the attorney-client privilege and the expectation of client confidence belongs to the Parent and the Merger Sub and shall be controlled by the Parent and the Merger Sub and shall not pass to or be claimed by the Company or InnoHold or their respective Affiliates. Notwithstanding anything to the contrary contained herein, in the event that after the First Closing, Closing a dispute arises between the Second Closing Acquired Entities after the Second Closing, Company or InnoHold or any of their respective agents or Affiliates and a Person other than the Company or InnoHold or any of its agents or Affiliates, and (ii) Seller Counsel may disclose to then the Sellers Company or InnoHold or any of their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities agents or their respective Affiliates, whether or not such information is subject to as applicable, may assert the attorney-client privilege, attorney work product protection, privilege to prevent disclosure of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access confidential communications to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwisefrom EGS.
(c) If Each of the Parties acknowledges and to the extentagrees, at any time subsequent to each Applicable Closing, Buyer or any of on its Affiliates (including the First Closing Acquired Entities after the First Closing own behalf and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself its directors, members, partners, officers, employees, and Affiliates that the Company and InnoHold are the clients of Xxxxxx. After the Closing, it is possible that Xxxxxx will seek to represent the Parent and its Affiliates (including individually and collectively, the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only “Parent’s Group”) in connection with the Transactions or the Related Documents and any claims made thereunder pursuant to this Agreement or the Related Documents. The Parties hereby agrees that neither the Parent’s Group nor any Affiliate thereof shall retain Xxxxxx to represent the Parent’s Group or any Affiliate thereof following the Closing in connection with any issues that may arise under this Agreement or the Parent Documents or any claims that may be made pursuant to this Agreement or the Related Documents, without the express prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedParent Representative in each instance in its sole discretion.
Appears in 1 contract
Samples: Merger Agreement (Global Partner Acquisition Corp.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities including, after the First Closing Closing, the Company and its Subsidiaries) acknowledges that DLA Piper LLP (US) has acted as counsel for Seller and the Second Closing Acquired Entities Company in connection with this Agreement and the transactions contemplated hereby, and in connection with this Agreement and the transactions contemplated hereby, DLA Pxxxx has not acted as counsel for any other Person. If Seller so desires and without the need for any consent or waiver by the Company, Seller or Buyer, DLA Piper LLP (US) will be permitted to represent Seller and any of its Affiliates after the Second Closing in connection with any matter, including without limitation, anything related to the transactions contemplated by this Agreement, any Ancillary Documents or any disagreement or dispute relating thereto. Without limiting the generality of the foregoing, after the Closing), shall DLA Piper LLP (US) will be entitled permitted to waive represent Seller, any of its Affiliates, or any one or more of them, in connection with any negotiation, transaction or dispute (including any litigation, arbitration or other adversary proceeding) with Buyer, its Subsidiaries or any of their agents or affiliates under or relating to this Agreement, any transaction contemplated by this Agreement, and any related matter, such as claims or disputes arising under any Ancillary Documents. From and after the Closing, the attorney-client privilege of the Company and its Subsidiaries related to communications between the Company or its Subsidiaries, on the one hand, and Seller and any of their Affiliates, on the other hand, to the extent related to the negotiation, preparation, execution, delivery and performance under, or any dispute or proceeding arising out of or relating to, this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby will be deemed to be the right of Seller, and not that of Buyer, the Company or its Subsidiaries, and may be waived only with by Seller. Absent the consent of Seller, neither Buyer nor, from and after the SellersClosing, the Company or its Subsidiaries, will have a right to access such attorney-client privileged material of the Company and its Subsidiaries related to this Agreement, the Ancillary Documents or any of the transactions contemplated hereby or thereby. Notwithstanding the foregoing, in the event that a dispute arises between Buyer or its Affiliates, including, following the Closing, the Company and its Subsidiaries, on the one hand, and a third party other than Seller or its Affiliates, on the other hand, Buyer or its Affiliates, including, following the Closing, the Company and its Subsidiaries, may prevent the disclosure of any such attorney-client privileged material to such third party and request that Seller not to be unreasonably withheldpermit such disclosure, conditioned or delayedand Seller shall cooperate with such request in good faith.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Cogent Communications Holdings, Inc.)
Legal Representation. (a) It is acknowledged by Parent, on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation), acknowledges and agrees that each of the Parties that the First Closing Acquired EntitiesXxxxxx Xxxxxxxx LLP, the Second Closing Acquired Entities Grossman, Tucker, Xxxxxxxxx & Xxxxxxx, PLLC and the Sellers have retained Xxxxxx & Xxxxxxx Norton Xxxx Xxxxxxxxx US LLP (collectivelyeach, “Seller Company Counsel”) to act has acted as their counsel for the Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller in connection with this Agreement and the transactions contemplated hereby, each Company Counsel has not acted as counsel for any other Party Person, including Parent.
(b) Only the Company and its Affiliates shall be considered clients of each Company Counsel in connection with the TransactionsAcquisition Engagement. Parent, on behalf of itself and that none of its Affiliates (including, after the other Parties has Closing, the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers Surviving Corporation), acknowledges and Buyer hereby agree agrees that, in upon and after the event that any disputeClosing, or any other matter in which all confidential communications between the interests of Sellers Company and their respective its Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)each Company Counsel, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the SellersAcquisition Engagement, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to and any attendant attorney-client privilege, attorney work product protection, and expectation of Seller Counsel’s duty of confidentialityclient confidentiality applicable thereto, shall survive the Closing and be deemed to belong solely to the Equityholders and their respective Affiliates (other than the Company), and not the Company, and shall not pass to or be claimed, held, or used by Parent or the Company (or, after the Closing, the Surviving Corporation) or any insurance carrier providing the R&W Policy upon or after the Closing. Accordingly, Buyer and its Affiliates Parent shall not have access to any such communications, or to the files of Seller Counselany Company Counsel relating to the Acquisition Engagement, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ai) to the extent that files of Seller any Company Counsel in respect of the Acquisition Engagement constitute property of the client, only the Sellers Equityholders and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (Bii) Seller each Company Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyerthe Company (or, after the Closing, the First Closing Acquired Entities Surviving Corporation) or Parent or any insurance carrier providing the Second Closing Acquired Entities R&W Policy by reason of any attorney-client relationship between Seller each Company Counsel and the First Closing Acquired Entities Company or otherwise; provided, however, that notwithstanding the foregoing, each Company Counsel shall not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisors of the Second Closing Acquired Entities Equityholders and their respective Affiliates; provided that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications). Parent, on behalf of itself and its Affiliates (as applicableincluding, after the Closing, the Surviving Corporation), irrevocably waives any right it may have arising out of its ownership of the Company (including, after Closing, the Surviving Corporation) or otherwise.
the Merger to discover or obtain (cor use, if discovered or obtained) information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, work product protection or other expectation of confidentiality owed to the Company and/or its Affiliates. If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer Parent or any of its Affiliates (including the First Closing Acquired Entities including, after the First Closing and Closing, the Second Closing Acquired Entities after the Second ClosingSurviving Corporation) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or their respective Affiliates, its Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, BuyerParent, on behalf of itself and its Affiliates (including the First Closing Acquired Entities including, after the First Closing and Closing, the Second Closing Acquired Entities after the Second ClosingSurviving Corporation), shall be entitled to waive such privilege only with the prior written consent of the SellersStockholder Representative, on behalf of the Equityholders, (such consent not to be unreasonably withheld). Parent, conditioned on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation), acknowledges and agrees that each Company Counsel has acted as counsel for the Company and its respective Affiliates and that each Company Counsel may represent the Equityholders, the Stockholder Representative and/or their respective Affiliates in future matters. Accordingly, Parent, on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation), expressly consents to each Company Counsel’s representation of the Equityholders, the Stockholder Representative and/or their respective Affiliates and/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 Parent and the Surviving Corporation, on the one hand, and the Equityholders, the Stockholder Representative or delayedany of their respective Affiliates, on the other hand, are adverse, including any matter relating to the transactions contemplated by this Agreement, and whether or not such matter is one in which any Company Counsel may have previously advised the Company or its Affiliates.
(c) From and after the Closing, the Surviving Corporation shall cease to have any attorney-client relationship with any Company Counsel, unless and to the extent a Company Counsel is expressly engaged in writing by the Surviving Corporation to represent the Surviving Corporation after the Closing. Any such representation of the Surviving Corporation by a Company Counsel after the Closing shall not affect the foregoing provisions hereof. Furthermore, each Company Counsel, in its sole discretion, shall be permitted to withdraw from representing the Surviving Corporation in order to represent the Equityholders.
(d) Each of the Parties to this Agreement consents to the arrangements in this Section 11.20 and waives any actual or potential conflict of interest that may be involved in connection with any representation by any Company Counsel permitted hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Anika Therapeutics, Inc.)
Legal Representation. Buyer hereby agrees on its own behalf and on behalf of its directors, members, partners, officers, employees and Affiliates (a) It is acknowledged by including, after the Closing, the Company), and each of the Parties that the First Closing Acquired Entitiestheir successors and assigns (all such parties, the Second Closing Acquired Entities and the Sellers have retained “Waiving Parties”), that Xxxxxxxx Xxxxx & Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel successor) may represent any or all of the Sellers and Seller Holders or its or their Affiliates in such dispute(the “Seller Group”) or any director, even though the interests member, partner, officer, employee or Affiliate of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, Group in connection with any future disputesdispute, lawsuitslitigation, actionsclaim, proceedingsProceeding or obligation arising out of or relating to this Agreement, investigations any agreements contemplated by this Agreement or other matters, including the transactions contemplated hereby or thereby (any dispute between Buyersuch representation, the First “Post-Closing Acquired Entities after Representation”) notwithstanding its representation of the First Closing, Company in connection with this Agreement and the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one handtransactions contemplated hereby, and Buyer on behalf of itself and the Sellers Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest arising therefrom or relating thereto in connection with the Post-Closing Representation, provided, however, that the parties agree to take all steps reasonably necessary to ensure that any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and privilege attaching as a result of Xxxxxxxx Xxxxx & Xxxxxx LLP representing the expectation of client confidence belongs solely to Company will survive the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may remain in effect and be controlled by the Sellers Company. Buyer, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications between the Seller Group and their counsel prior to the Closing, including Xxxxxxxx Xxxxx & Xxxxxx LLP, made substantially in connection with the negotiation, preparation, execution, delivery and performance under this Agreement, any agreements contemplated by this Agreement or their Affiliates (other than the First Closing Acquired Entities transactions contemplated hereby or thereby that were privileged communications between the Seller Group, the Company, and such counsel prior to the Closing, shall continue from and after the First Closing to be privileged and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by that neither Buyer, the First Closing Acquired Entities after the First ClosingWaiving Parties, the Second Closing Acquired Entities after the Second Closing, nor any Person purporting to act on behalf of or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, through Buyer or any of its Affiliates (including the First Closing Acquired Entities Waiving Parties, will seek to obtain the same by any process. From and after the First Closing Closing, Buyer, on behalf of itself and the Second Closing Acquired Entities after the Second Closing) shall have the right to Waiving Parties, waives and will not assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Xxxxxxxx Xxxxx & Xxxxxx LLP or their respective Affiliates, and any Person representing them, that occurred at any time in the Seller Group occurring prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First in connection with any Post-Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedRepresentation.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each of the Parties The Company hereby confirms that the First Closing Acquired Entitiesin connection with this Agreement, the Second Closing Acquired Entities other Transaction Documents and the Sellers have retained Xxxxxx & transactions contemplated hereby and thereby, Xxxxxxx Coie LLP (“Firm”) has acted as special counsel for the Company as well as the Shareholders and the holders of Company Options and Company Restricted Stock Units as a group (collectively, the “Seller CounselAcquisition Engagement”) to act as their counsel and in connection with therewith confirms that the Transactions, and that Seller Counsel Firm has not acted as counsel for any individual Equity Holder or any other Party Person in connection with the Transactions, transactions contemplated by this Agreement and that none of the other Transaction Documents. After the Closing, it is possible that the Firm will represent the Equity Holders, Company Indemnifying Parties has and/or the status of a client of Shareholders’ Representative (individually and collectively, the “Seller Counsel Group”) in connection with the transactions contemplated herein or in connection with any claims for conflict of interest or any other purposes as a result thereofindemnification against the Company Indemnifying Parties. The Sellers Buyer, the Surviving Corporation and Buyer its Subsidiaries hereby agree that, if Seller Group so desires and without the need of any consent or waiver of the Surviving Corporation, Firm will be permitted represent the Seller Group in the event future in connection with issues that may arise under this Agreement and any disputeclaims that may be made pursuant to this Agreement, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, a dispute that arises after the Applicable Closing between Buyer, Buyer (and/or the First Closing Acquired Entities after the First Closing Surviving Corporation or the Second Closing Acquired Entities after the Second Closing, on the one hand, its Subsidiaries) and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such disputeShareholders’ Representative, even though the interests of the Sellers and their Affiliates Shareholders’ Representative may be directly adverse to Buyer, the First Closing Acquired Entities Buyer or the Second Closing Acquired EntitiesSurviving Corporation, and even though Seller Counsel formerly the Firm may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities Company in any a matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect Notwithstanding anything to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyercontrary contained herein, the First Parties intend that all communications at or prior to the Closing Acquired Entities after the First Closingbetween Company, the Second Closing Acquired Entities after the Second Closing, any Subsidiary of Company or any member of its or their respective Affiliatesthe Seller Group (the “Target Group”), on the one hand, and Xxxxx & Xxxxxxx LLP and the Sellers or any of their respective AffiliatesFirm, on the other hand, in the course of or in connection with or between any other Personsthe Acquisition Engagement, with respect will for all purposes be deemed to be privilege attorney-client communication (unless and until and to the Transactions, extent any such privilege is effectively waived as provided under applicable Law) (i) as to all communications among Seller Counselcollectively, the First Closing Acquired Entities (with respect to communications prior to the First Closing“Protected Communication”), the Second Closing Acquired Entities (with respect and all associated rights to communications prior to the Second Closing)assert, the Sellers or any of their respective Affiliates, waive and otherwise administer the attorney-client privilegeprivilege and right of confidentiality of any member of the Target Group with respect thereto (the “Associated Rights”), attorney work product protection will, from and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, rest exclusively with the Second Closing Acquired Entities after the Second ClosingShareholders’ Representative and will not be transferred, assigned, conveyed or any delivered, by operation of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) law or otherwise.
(c) If and , to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates or any successor or assign of any of the foregoing (including collectively, the First Closing Acquired Entities “Buyer Group”) provided that if any, and then solely to the extent that Protected Information or Associated Rights relates to any third party disputes or claims involving Company or any Subsidiary, then such communications and materials shall be subject to joint privilege with the applicable Company, and the Target Company shall retain copies thereof and shall be entitled to access such Protected Information. Accordingly, the Parties hereby agree that, as of immediately prior to the Closing, for the consideration set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged: (i) all Protected Communication and Associated Rights are, and will be deemed for all purposes, transferred, assigned, conveyed and delivered in full to the Shareholders’ Representative, and (ii) no member of the Buyer Group will have any right, title, interest or benefit in or to any of the Protected Communication or any Associated Rights.
(c) Upon and after the First Closing and Closing, the Second Closing Acquired Entities after the Second Closing) Company shall cease to have the right to assert or waive any attorney-client relationship with the Firm.
(d) For the avoidance of doubt, nothing contained in the foregoing provisions of this Section 11.15 (i) limit, override, prevent or otherwise prohibit a waiver of the attorney-client privilege with respect to after the Closing, or (ii) will be deemed or construed as a waiver by Buyer or its Affiliates of any communication between right or remedy arising or resulting from the First Closing Acquired Entities and actions of any of the Second Closing Acquired Entities (as applicable) Shareholders Representative, the Seller Group or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities agents or representatives after the First Closing and that would, in the Second Closing Acquired Entities after the Second Closing)absence of this Section 11.15, shall be entitled to waive result in a waiver of such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedattorney-client privilege.
Appears in 1 contract
Samples: Merger Agreement (MeetMe, Inc.)
Legal Representation. (a) It is acknowledged by each of Following the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP Xxxxxx Attorneys PLLC (collectively, “Seller CounselH&H”) may serve as counsel to act as their counsel the Shareholder in connection with any litigation, claim or obligation arising out of or relating to this Agreement, the TransactionsAncillary Agreements or the transactions contemplated by this Agreement or the Ancillary Agreements, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none each of the other Parties has the status of a client of Seller Counsel for hereto consents thereto and waives any conflict of interest arising therefrom. As to any privileged attorney client communications between H&H and the Company, the Shareholder or any other purposes as a result thereof. The Sellers of its Affiliates prior to and Buyer through the Closing relating to the negotiation, preparation, execution and delivery of this Agreement, the Ancillary Agreements or the transactions contemplated by this Agreement or the Ancillary Agreements, and the consummation of the transactions contemplated hereby agree thatand thereby (collectively, the “Privileged Communications”), each of Xxxxxxxx and Buyer, on its behalf and on behalf of all of its Affiliates and Related Parties, agrees that in the event that any disputea dispute arises by or among Xxxxxxxx, Buyer, the Company, or any other matter in which the interests of Sellers and their respective AffiliatesAffiliates or Related Parties, on the one hand, and Buyer Shareholder and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), or Related Parties on the other hand, are adverse, arises after (a) the Applicable Closing between Buyer, right to control such Privileged Communication will be retained by the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, Shareholder and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and they shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to such Privileged Communications. The foregoing waiver and agreement does not apply to communications with any communication between Person other than the First Closing Acquired Entities Shareholder, its Affiliates or Related Parties and its advisors. In the Second Closing Acquired Entities event that Buyer or Xxxxxxxx is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged Communications, Buyer or Xxxxxxxx shall, to the extent legally permissible, promptly (as applicableand, in any event, within two (2) or their respective AffiliatesBusiness Days) notify the Shareholder in writing so that the Shareholder can seek a protective order and shall cooperate with the Shareholder in its efforts to obtain a protective order. Each of Xxxxxxxx and Xxxxx agrees that it will not, and any Person representing themthat it will cause the Company not to, (i) assert that occurred at any time prior to such Applicable ClosingXxxxxxxx, Buyer, on behalf of itself and its Affiliates (including Buyer or the First Closing Acquired Entities after Company has the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled right to waive such the attorney-client or other privilege only with respect to the consent of Privileged Communications or (ii) seek to obtain the Sellers, not to be unreasonably withheld, conditioned or delayed.Privileged Communications from H&H.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sigmatron International Inc)
Legal Representation. This Agreement was drafted by Corporate Law Partners, PLLC, (a) It is acknowledged “Firm”). The Members acknowledge and understand that this past and present legal representation by each Firm of any such Members, Managers, Officers, or their affiliated entities represents a potential or actual conflict of interest on the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities part of Firm in drafting this Agreement and any other documents or agreements arising out of this Agreement. The Company and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Members further acknowledge and understand that Firm has represented only the Executive in connection with the Transactionsdrafting of this Agreement and other documents related to the transactions contemplated by the Agreement (“Documents”). THE PARTIES HERETO CONSENT TO SUCH REPRESENTATION AND ACKNOWLEDGE AND AGREE THAT THEY HAVE EITHER SOUGHT SEPARATE LEGAL COUNSEL TO ADVISE THEM IN CONNECTION WITH THIS AGREEMENT OR THE DOCUMENTS, and that Seller Counsel has not acted as counsel for any other Party in connection with the TransactionsOR IF THEY HAVE NOT DONE SO, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofHAVE BEEN GIVEN THE OPPORTUNITY TO DO SO AND HAVE VOLUNTARILY CHOSEN NOT TO DO SO. FURTHERMORE, THIS AGREEMENT HAS TAX AND FINANCIAL ACCOUNTING CONSEQUENCES FOR EACH PARTY EACH PARTY HAS EITHER SOUGHT SEPARATE TAX AND FINANCIAL ACCOUNTING ADVICE IN CONNECTION WITH THIS AGREEMENT, OR IF THEY HAVE NOT DONE SO, HAVE BEEN GIVEN THE OPPORTUNITY TO DO SO AND HAVE VOLUNTARILY CHOSEN NOT TO DO SO. NOTWITHSTANDING THE FOREGOING, THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE NOT RELIED ON FIRM FOR ANY LEGAL ADVICE, TAX ADVICE OR FINANCIAL ACCOUNTING sADVICE. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Parties hereto by executing this Agreement or any of its or their respective Affiliatesthe Documents with full knowledge of the past, on the one handpresent, and future legal representation by Firm of the Sellers or any of their respective Affiliatespersons and entities described herein, on the other hand, or with or between any other Persons, with respect hereby consent to the Transactions, (i) as drafting of this Agreement or Documents on behalf of the Executive by Firm and waive the right to all communications among Seller Counsel, the First Closing Acquired Entities (with respect object to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its Firm’s continued representation of the Sellerspersons and entities described herein. The Corporation agrees to be jointly liable to the Firm for its legal fees and the Parties consent to disbursements by the Corporation to Firm for such legal services, and it shall not be deemed to be a breach of the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordinglycare, Buyer and its Affiliates shall not have access to any such communicationsa breach of the duty of loyalty, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality a breach of the foregoing, upon requirement of good faith and after each Applicable Closing, (A) to fair dealing by the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseParties hereto.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Legal Representation. All communications involving attorney-client confidences among the Company Group, Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP (a“Xxxxxxxxx”) It is acknowledged by each and Xxxxx Lovells in the course of the Parties that the First Closing Acquired Entitiesnegotiation, the Second Closing Acquired Entities documentation and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none consummation of the other Parties has transactions contemplated by this Agreement will be deemed to be attorney-client confidences that belong solely to the status Stockholders (and neither of a client of Seller Counsel for conflict of interest the Surviving Companies or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing Subsidiaries or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (iParent) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occursStockholder Representative. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Aa) the Stockholders and their Affiliates (and neither of the Surviving Companies or their respective Subsidiaries or Affiliates, including Parent) will be the sole holders of the attorney-client privilege with respect to the negotiation, documentation and consummation of the transactions contemplated by this Agreement (collectively, the “Pre-Merger Communications”), and neither of the Surviving Companies or their respective Subsidiaries or Affiliates (including Parent) will be a holder thereof, (b) to the extent that files of Seller Counsel Xxxxxxxxx or Xxxxx Lovells with respect to the negotiation, documentation and consummation of the transactions contemplated by this Agreement constitute property of the client, only the Sellers Stockholders and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall will hold such property rights, rights and (Bc) Seller Counsel shall neither Xxxxxxxxx nor Xxxxx Lovells will have no any duty whatsoever to reveal or disclose any such attorneythe Pre-client communications Merger Communications or files pertaining to Buyer, the First Closing Acquired Entities Pre-Merger Communications to the Surviving Companies or the Second Closing Acquired Entities any of their respective Subsidiaries or Affiliates (including Parent) by reason of any attorney-client relationship between Seller Counsel any of Xxxxxxxxx or Xxxxx Lovells and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or otherwise.
(c) If . Notwithstanding the foregoing, in the event that a dispute arises between either of the Surviving Companies or their respective Subsidiaries or Affiliates, including Parent, on the one hand, and to a third party other than the extentStockholders, at any time subsequent to each Applicable Closingon the other hand, Buyer or any of its Affiliates (including Parent may assert the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege to prevent the disclosure of the Pre-Merger Communications to such third party or waive such privilege if desired in connection with respect to any communication resolving such dispute. Notwithstanding the foregoing, in the event that a dispute arises between Parent, either of the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Surviving Companies or their respective Subsidiaries or Affiliates, on the one hand, and one or more Stockholders, on the other hand, relating to any Person representing them, event that occurred at any time prior to the Closing Date or the transactions contemplated hereby, Parent shall be provided access to, and permitted to use, all Pre-Merger Communications that relate directly to contested facts in connection with such Applicable Closingdispute, Buyerincluding information in the files of Xxxxxxxxx; provided that for the avoidance of doubt, this sentence shall not apply to such disputes with the Stockholders collectively or the Stockholder Representative on behalf of itself and its Affiliates the Stockholders. In the event that Parent is legally required or requested by governmental order or otherwise (including any such request or order, a “Legal Request”) to access or obtain a copy of all or a portion of the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Pre-Merger Communications, Parent shall be entitled to waive access or obtain a copy of and disclose the Pre-Merger Communications to the extent necessary to comply with any such privilege only with Legal Request. In the consent event of any Legal Request, Parent shall promptly notify the Stockholder Representative in writing (prior to the disclosure by Parent of any Pre-Merger Communications to the extent practicable) so that the Stockholder Representative can seek a protective order and Parent agrees to use all reasonable best efforts (at the sole cost and expense of the Sellers, not Company Equityholders) to be unreasonably withheld, conditioned or delayedassist therewith.
Appears in 1 contract
Samples: Merger Agreement (Take Two Interactive Software Inc)
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company) acknowledges and agrees that Xxxxxx, Xxxx & Xxxxxxxx LLP (“Xxxxxx Xxxx”) has acted as counsel for the Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxxxx Xxxx has not acted as counsel for any other Party Person, including the Buyer.
(b) Only the Seller, the Company and their respective Affiliates shall be considered clients of Xxxxxx Xxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Company) acknowledges and agrees that any disputeall confidential communications between the Seller, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Xxxxxx Xxxx, on the other hand, in the course of the Acquisition Engagement, and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Seller and its Affiliates (other than the Company), and not the Company, and shall not pass to or be claimed, held, or used by the Buyer or the Company upon or after the Closing. Accordingly, the Buyer shall not have access to any such communications, or to the files of Xxxxxx Xxxx relating to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of Xxxxxx Xxxx in respect of the Acquisition Engagement constitute property of the client, only the Seller and its Affiliates shall hold such property rights and (ii) Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Company or the Buyer by reason of any attorney-client relationship between Xxxxxx Xxxx and the Company or otherwise; provided, however, that notwithstanding the foregoing, Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisors of the Seller and its Affiliates; provided, that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications). The Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing, the Company) irrevocably waives any right it may have to discover or obtain information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege or work product protection owed to the Seller and/or its Affiliates. If and to the extent that, at any time subsequent to Closing, the Buyer or any of its Affiliates (including after the Closing, the Company) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the Company or its Affiliates and any Person representing them that occurred at any time prior to the Closing, 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 Seller (such consent not to be unreasonably withheld).
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) acknowledges and agrees that Xxxxxx Xxxx has acted as counsel for the Seller, the Company and their respective Affiliates for several years and that the Seller reasonably anticipates that Xxxxxx Xxxx will continue to represent it and/or its Affiliates in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) expressly (i) consents to Xxxxxx Xxxx’x representation of the Seller and/or its Affiliates and/or any of their respective agents (if any of the foregoing Persons so desire) in any matter, including any post-Closing matter in which the interests of the Buyer and the Second Closing Acquired Entities after Company, on the Second Closing)one hand, and the Seller or any of its Affiliates, on the other hand, are adverse, arises after including any matter relating to the Applicable Closing between Buyertransactions contemplated by this Agreement, and whether or not such matter is one in which Xxxxxx Xxxx may have previously advised the Seller, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its Company or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose consents to the Sellers disclosure by Xxxxxx Xxxx to the Seller or their respective its Affiliates of any information learned by Seller Counsel Xxxxxx Xxxx in the course of its representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s or Xxxxxx Xxxx’x duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(cd) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, The Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing, the Company) further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Company or its Affiliates by Xxxxxx Xxxx in connection with this Agreement or the transactions contemplated hereby.
(e) From and after the Closing, the Company shall cease to have any attorney-client relationship with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is expressly engaged in writing by the Company to represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Second Closing Acquired Entities Seller and/or any of its Affiliates or (ii) the Seller and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxxxx Xxxx after the Second Closing)Closing shall not affect the foregoing provisions hereof. Furthermore, Xxxxxx Xxxx, in its sole discretion, shall be entitled permitted to withdraw from representing the Company in order to represent or continue so representing the Seller.
(f) The Seller, the Company and the Buyer consent to the arrangements in this Section 11.20 and waive such privilege only any actual or potential conflict of interest that may be involved in connection with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedany representation by Xxxxxx Xxxx permitted hereunder.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each Each Party hereto acknowledges that (i) one or more of the Parties that the First Closing Acquired EntitiesGroup Companies, the Second Closing Acquired Entities and the Sellers Seller and/or their respective Affiliates have retained Xxxxxx Ropes & Xxxxxxx Gray LLP (collectively, the “Seller CounselLaw Firm”) to act as their counsel in connection with the Transactionstransactions contemplated by this Agreement (including the negotiation, preparation, execution and delivery of this Agreement and related agreements, and that Seller Counsel the consummation of the transactions contemplated hereby or thereby) as well as other past and ongoing matters, (ii) the Law Firm has not acted as counsel for Buyer or any other Party of its past, present or future Affiliates in connection with the Transactionstransactions contemplated by this Agreement and (iii) no Person other than Seller, and that none of the other Parties Group Companies or their respective Affiliates has the status of a Law Firm client of Seller Counsel for conflict of interest or any other purposes purpose as a result thereof. The Sellers and Buyer hereby agree that(A) waives and will not assert, and will cause each of its Affiliates (including, after the Closing, the Group Companies) to waive and not assert, any conflict of interest relating to the Law Firm’s representation after the Closing of Seller or their Affiliates in any matter involving the transactions contemplated by this Agreement (including the negotiation, preparation, execution and delivery of this Agreement and related agreements, and the consummation of the transactions contemplated hereby or thereby), including in any litigation, arbitration, mediation or other proceeding, and (B) consents to, and will cause each of its Subsidiaries to consent to, any such representation, even though, in the event that any disputeeach case, or any other matter in which (x) the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing Seller or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities Group Companies or their respective Affiliates, (y) the Second Closing Acquired Entities, and even though Seller Counsel formerly Law Firm may have represented Seller, the First Closing Acquired Entities Group Companies or the Second Closing Acquired Entities their respective Affiliates in any matter a substantially related to such disputematter, or (z) the Law Firm may be handling other ongoing matters for Buyer, the Group Companies or any of their respective Affiliates.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree Bxxxx agrees that, in connection with any future disputesafter the Closing, lawsuits, actions, proceedings, investigations or other matters, including any dispute between none of Buyer, the First Closing Acquired Entities Group Companies or any of their Affiliates will have any right to access or control any of the Law Firm’s records or communications relating to or affecting the transactions contemplated by this Agreement (including the negotiation, preparation, execution and delivery of this Agreement and related agreements, and the consummation of the transactions contemplated hereby or thereby) (such records or communications containing legal work product of the Law Firm, the “Attorney-Client Communications”), which will be the property of (and be controlled by) Seller. In addition, Bxxxx agrees that it would be impractical to remove all Attorney-Client Communications from the records (including e-mails and other electronic files) of the Group Companies. Accordingly, Buyer will not, and will cause each of its Affiliates (including, after the First Closing, the Second Closing Acquired Entities Group Companies) not to, use any Attorney-Client Communication remaining in the records of the Group Companies after the Second Closing, Closing in a manner that may be adverse to Seller or any of its Affiliates.
(c) Buyer agrees, on its own behalf and on behalf of its Affiliates (including, after the Closing, the Group Companies), that from and after the Closing (i) the attorney-client privilege, all other evidentiary privileges, and the expectation of client confidence as to all Attorney-Client Communications belong to Seller and will not pass to or be claimed by Bxxxx, the Group Companies or any of their respective Affiliates, and (ii) Seller will have the exclusive right to control, assert or waive the attorney-client privilege, any other evidentiary privilege, and the expectation of client confidence with respect to such Attorney-Client Communications. Accordingly, Buyer will not, and will cause each of its Affiliates (including, after the Closing, the Group Companies) not to, (x) assert any attorney-client privilege, other evidentiary privilege, or expectation of client confidence with respect to any Attorney-Client Communication, except, that, in the event of a dispute after the Closing with a Person that is not the Seller or any of its Affiliates, the Buyer and its Affiliates may assert the attorney-client privilege to prevent disclosure of such information to a third party; or (y) take any action which could cause any Attorney-Client Communication to cease being a confidential communication or to otherwise lose protection under the attorney-client privilege or any other evidentiary privilege, including waiving such protection in any dispute with a Person that is not Seller or any of its Affiliates. Furthermore, Bxxxx agrees, on its own behalf and on behalf of each of its Affiliates (including, after the Closing, the Group Companies), that in the event of a dispute between the Seller or any of its Affiliates, on the one hand, and the Sellers or any of their respective AffiliatesGroup Companies, on the other hand, arising out of or with or between relating to any other Personsmatter in which the Law Firm jointly represented both parties, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, neither the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely confidence, nor any right to the Sellers any other evidentiary privilege will protect from disclosure to Seller or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective its Affiliates any information learned by Seller Counsel in or documents developed or shared during the course of its the Law Firm’s joint representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer Group Companies and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseSeller.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Eversource Energy)
Legal Representation. (a) It is acknowledged by The Company hereby agrees on behalf of itself and its directors, members, partners, officers, employees and Affiliates, and each of the Parties that the First Closing Acquired Entitiestheir respective successors and assigns (all such parties, the Second “Company Waiving Parties”), that any legal counsel (including Xxxxx Xxxx & Xxxxxxxx LLP and Xxxxxxx) that represented BSAQ, the Sponsor and/or the Observer(s) prior to the Closing Acquired Entities and may represent the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectivelyObserver(s), “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for Sponsor or any other Party in connection with the Transactions, and that none of the other Parties has Sponsor’s Affiliates or the status of a client of Seller Counsel for conflict of interest Sponsor’s or any other purposes as a result thereof. The Sellers and Buyer hereby agree thatits Affiliates’ respective directors, members, partners, officers or employees, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree thateach case, in connection with any future disputesAction or obligation arising out of or relating to this Agreement, lawsuits, actions, proceedings, investigations notwithstanding its representation (or any continued representation) of BSAQ or other mattersCompany Waiving Parties, including and each of BSAQ and the Company on behalf of itself and the Company Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any dispute between Buyerconflict of interest, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, breach of duty or any other objection arising therefrom or relating thereto. Each of its or their respective Affiliates, on the one hand, BSAQ and the Sellers or any Company on behalf of their respective Affiliatesitself and the Company Waiving Parties hereby further agrees that, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to legally privileged communications prior to the First Closing)Closing between or among any legal counsel (including Xxxxx Xxxx & Xxxxxxxx LLP and Xxxxxxx) that represented the Observers, the Second Closing Acquired Entities (with respect to communications Sponsor or any of the Sponsor’s Affiliates or the Sponsor’s or its Affiliates’ respective directors, members, partners, officers or employees prior to the Second Closing), Closing in any way related to the Sellers or any of their respective Affiliatestransactions contemplated hereby, the attorney-/client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Observer(s) and the Second Closing Acquired Entities after the Second Closing), Sponsor and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Observer(s) and the Second Closing Acquired Entities after the Second Closing)Sponsor, and shall not pass to or be claimed or controlled by Buyer, the First Closing Acquired Entities Company (after giving effect to the First Closing, the Second Closing Acquired Entities after the Second Closing, ) or any other Company Waiving Party; provided that the Observer(s) and the Sponsor shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or defense of their respective Affiliatesrights or obligations existing under this Agreement. Notwithstanding the foregoing, and (ii) Seller Counsel may disclose any privileged communications or information shared by the Company or any Company Waiving Party prior to the Sellers Closing with BSAQ, the Sponsor or their respective Affiliates the Observer(s) (in any capacity) under a common interest agreement shall remain the privileged communications or information learned by Seller Counsel in the course of its representation of the Sellers, Company. The Company acknowledges that the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, foregoing provisions apply whether or not any Applicable Closing occurs. Without limiting legal counsel (including Xxxxx Xxxx & Xxxxxxxx LLP and Xxxxxxx) that represented BSAQ, the generality of Sponsor and/or the foregoing, upon and after each Applicable Closing, (AObserver(s) prior to the extent that files of Seller Counsel constitute property of Closing provides legal services to the clientCompany, only the Sellers and their respective Affiliates (BSAQ or any other than the First Closing Acquired Entities Company Waiving Parties after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseDate. [Signature pages follow.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.]
Appears in 1 contract
Samples: Business Combination Agreement (Black Spade Acquisition Co)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel In any dispute or proceeding arising under or in connection with the Transactions, and that Seller Counsel has not acted as counsel for this Agreement or any other Party in connection with the Transactions, and that none Ancillary Agreement or any of the other Transactions including, without limitation, under Article VII of this Agreement, the Seller and the Seller Indemnified Parties has shall have the status right, at their election, to retain the firm of a client Xxxxxx, Xxxx & Xxxxxxxx LLP to represent them in such matter and the Buyer (on behalf of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers itself and Buyer hereby agree thatit Affiliates, in including the event that any disputeCompany, or any other matter in which the interests of Sellers and their respective directors, officers, employees, Affiliates, on the one hand, controlling persons and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers Representatives and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers successors and their Affiliates in such dispute, even though the interests of the Sellers assigns) hereby irrevocably waives and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access consents to any such communicationsrepresentation in any such matter, or to the files of Seller Counsel, whether or not except in any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) such case to the extent that files a conflict arises under ethical standards applicable to the firm of Seller Counsel constitute property of the clientXxxxxx, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities Xxxx & Xxxxxxxx LLP by reason of any attorney-client relationship between Seller Counsel and representation of the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or of any of its Affiliates (including the First Closing Acquired Entities Company) after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities . The Buyer (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (Affiliates, including the First Company, and their respective directors, officers, employees, Affiliates, controlling persons and Representatives and their respective successors and assigns) hereby irrevocably acknowledges and agrees that all attorney-client communications between, on the one hand, the Seller and/or the Company (and their respective directors, officers, employees, Affiliates, controlling persons and Representatives) and, on the other hand, their counsel, including without limitation Xxxxxx, Xxxx & Xxxxxxxx LLP, that specifically relate to the negotiation, preparation, execution and delivery of this Agreement or any Ancillary Agreement or any schedule, certificate or other document delivered pursuant hereto or thereto or in connection with the Transactions or in connection with the Closing Acquired Entities after of the First Closing and the Second Closing Acquired Entities after the Second Closing)Transactions, shall be entitled deemed privileged communications as to waive which such privilege may only with be waived by the consent Seller, and neither the Buyer, nor any Person purporting to act on behalf of or through the SellersBuyer, not will seek to be unreasonably withheld, conditioned or delayedobtain any such privileged communications by any process.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by The Purchaser, the Sellers and the Acquired Company hereby agree, on their own behalf and on behalf of their directors, shareholders, members, partners, officers, employees and Affiliates, and each of the Parties that the First Closing Acquired Entitiestheir successors and assigns (all such parties, the Second Closing Acquired Entities “Waiving Parties”), that (i) Xxxx & Berlis LLP and the Sellers have retained Xxxxxx Gross Shuman Bridzle & Xxxxxxx LLP P.C. (collectively, collectively the “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for may represent any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests each of Sellers and their respective Affiliates, on other than the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing Company and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between BuyerSubsidiary (individually and collectively, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing“Seller Group”), on the one hand, and the Sellers Acquired Company and their respective Affiliatesthe Subsidiary, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputesthe negotiation, lawsuitspreparation, actions, proceedings, investigations execution and delivery of this Agreement and the other documents contemplated hereunder and the consummation of the transactions contemplated hereunder or under the other matters, including any dispute between BuyerTransaction Documents (such representation, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing“Current Representation”), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Counsel (or any successor) may represent the Seller Counsel may disclose to the Sellers Group or their respective Affiliates any information learned by Seller Counsel in the course of its representation member of the SellersSeller Group or any director, shareholder, member, partner, officer, employee or Affiliate of the Seller Group or any member of the Seller Group, other than the Acquired Company and the Subsidiary, in each case in connection with any dispute, litigation, claim, proceeding or obligation arising out of or relating to this Agreement, the First Closing Acquired Entitiesother Transaction Documents and the other documents contemplated hereunder and the consummation of the transactions contemplated hereunder or under the other Transaction Documents (any such representation, the Second “Post-Closing Representation”) notwithstanding such representation (or any continued representation) of the Acquired Entities Company or their respective Affiliatesthe Subsidiary, and each of the Purchaser and the Acquired Company on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Each of the Purchaser and the Acquired Company acknowledge that the foregoing provision applies whether or not such information is subject Counsel provides legal services to attorney-client privilegethe Acquired Company or the Subsidiary after the Closing Date. Each of the Purchaser and the Acquired Company, attorney work product protectionfor itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications between the Seller Group and their counsel, including Counsel, made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or proceeding arising out of Seller Counsel’s duty or relating to, this Agreement, the other Transaction Documents and the other documents contemplated hereunder and the consummation of confidentiality. Accordinglythe transactions contemplated hereunder or under the other Transaction Documents, Buyer and its Affiliates shall not have access or any matter relating to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon are privileged communications between the Seller Group and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property such counsel and none of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to BuyerPurchaser, the First Closing Guarantor, the Acquired Entities Company, or any Person purporting to act on behalf of or through the Purchaser, the Guarantor or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer Company or any of its Affiliates (including the First Closing Acquired Entities Waiving Parties, will seek to obtain the same by any process. From and after the First Closing Closing, each of the Purchaser, the Guarantor and the Second Closing Acquired Entities after Company, on behalf of itself and the Second Closing) shall have the right to Waiving Parties, waives and will not assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities Counsel and the Second Closing Acquired Entities (as applicable) Company or their respective Affiliates, and any Person representing themin the Seller Group occurring during the Current Representation in connection with any Post-Closing Representation. Notwithstanding anything to the contrary in this Section 13.18, neither the Sellers’ Agent nor any Seller may assert (or cause to be asserted on their behalf) the attorney-client privilege with respect to any communication that reflects any fraud with respect to the transactions contemplated hereunder or under the other Transaction Documents. Further, in the event that a dispute arises between the Purchaser, the Guarantor, the Acquired Company or the Subsidiary and a third party other than a party to this Agreement after the Closing, the Acquired Company and the Subsidiary may assert the attorney-client privilege to prevent disclosure of confidential communications by Counsel (or any successors), the Sellers’ Agent or any of Sellers to such third party; provided, however, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing Company and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Subsidiary may not waive such privilege only with without the prior written consent of the Sellers, ’ Agent (which consent shall not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Samples: Share Purchase Agreement (Apogee Enterprises, Inc.)
Legal Representation. (a) It is acknowledged by each of The Parties agree that, notwithstanding the Parties fact that Nxxxxx Xxxxxxx may have, prior to Closing, jointly represented the First Closing Acquired EntitiesSPAC and/or MP One Investment, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel LLC in connection with this Agreement, the TransactionsAncillary Documents and the transactions contemplated hereby and thereby, and that Seller Counsel has not acted as counsel for any other Party also represented the SPAC and/or its Affiliates in connection with matters other than the Transactionstransaction that is the subject of this Agreement, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, Nxxxxx Xxxxxxx will be permitted in the event that any disputefuture, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one handto represent MP One Investment, and the Sellers and their LLC or its respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyermatters in which such Persons are adverse to the Company, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers SPAC or any of their respective Affiliates, on the other handincluding any disputes arising out of, or related to, this Agreement. The Company, who is or has the right to be represented by independent counsel in connection with the transactions contemplated by this Agreement, hereby agree, in advance, to waive (and to cause their Affiliates to waive) any actual or between any other Personspotential conflict of interest that may hereafter arise in connection with Nxxxxx Xxxxxxx’x future representation of one or more of MP One Investment, with respect LLC or its respective Affiliates in which the interests of such Person are adverse to the Transactions, (i) as to all communications among Seller Counselinterests of the SPAC, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers Company or any of their respective Affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by Nxxxxx Xxxxxxx of the SPAC, MP One Investment, LLC or any of their respective Affiliates. The Parties acknowledge and agree that, for the purposes of the attorney-client privilege, attorney work product protection MP One Investment, LLC shall be deemed the clients of Nxxxxx Xxxxxxx with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence belongs relating thereto shall belong solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)MP One Investment, and may LLC, shall be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)MP One Investment, LLC and shall not pass to or be claimed by Buyerthe SPAC or the Company; provided, further, that nothing contained herein shall be deemed to be a waiver by the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, SPAC or any of their respective AffiliatesAffiliates (including, and (ii) Seller Counsel may disclose to after the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the SellersEffective Time, the First Closing Acquired Entities, Surviving Subsidiary and the Second Closing Acquired Entities Target Companies) of any applicable privileges or their respective Affiliates, whether protections that can or not may be asserted to prevent disclosure of any such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access communications to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwisethird party.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Business Combination Agreement (Maxpro Capital Acquisition Corp.)
Legal Representation. (a) It is acknowledged by each Each of the Parties parties hereby agrees that the First Closing Acquired Entities, the Second Closing Acquired Entities Skadden may serve and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted served as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of to Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing individually and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyercollectively, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing“Seller Group”), on the one hand, and the Sellers and their respective AffiliatesAcquired Companies, on the other hand, Seller Counsel may represent any or all in connection with the negotiation, preparation, execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the Sellers transactions contemplated hereby and their Affiliates in such disputethereby, even though and that, following the interests Closing, Skadden may serve as counsel to any member of the Sellers and their Affiliates may be directly adverse to BuyerSeller Group or any director, partner, officer, employee or Affiliate of any member of the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, Group in connection with any future disputes, lawsuits, actions, proceedings, investigations Action arising out of this Agreement or other matters, including any dispute between Buyer, the First Closing Acquired Entities after Ancillary Agreements or the First Closing, the Second Closing Acquired Entities after the Second Closing, transactions contemplated hereby or any of its or their respective Affiliates, on the one handthereby notwithstanding such representation, and each of the Sellers or parties hereby consents thereto and waives any conflict of their respective Affiliatesinterest arising therefrom, on and each of the other handparties shall procure any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Purchaser agrees that, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller CounselSkadden, the First Closing Acquired Entities (with respect to communications prior to the First Closing)Companies, the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of Seller and their respective AffiliatesAffiliates regarding the transactions contemplated by this Agreement or the Ancillary Agreements or that relate to any dispute arising out of this Agreement or the Ancillary Agreements, the attorney-client privilege, attorney work product protection and the expectation of client confidence and any other applicable legal privilege belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Seller and the Second Closing Acquired Entities after the Second Closing)its Affiliates, as applicable, and may be controlled by the Sellers or their Seller and its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to Purchaser or the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentialityCompanies. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of Notwithstanding the foregoing, upon in the event that a dispute arises between Purchaser or any Acquired Company, on the one hand, and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates a third party (other than any member of the First Closing Acquired Entities Seller Group), on the other hand, after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including Acquired Company may assert the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesprevent disclosure of confidential communications by Skadden to such third party; provided, and any Person representing themhowever, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Company may not waive such privilege only with without the prior written consent of Seller. This Section 9.14 is for the Sellers, not to be unreasonably withheld, conditioned or delayedbenefit of the Seller Group and Skadden and such persons are intended third party beneficiaries of this Section 9.14.
Appears in 1 contract
Samples: Stock Purchase Agreement
Legal Representation. (a) It is acknowledged Skadden has been engaged by each of the Parties that Seller to represent the First Closing Acquired Entities, the Second Closing Acquired Entities Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereoftransactions contemplated hereby. The Sellers Purchaser (on its behalf and Buyer hereby agree on behalf of its Affiliates (including, after the Closing, the Company)) hereby: (a) agrees that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, a dispute arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or Purchaser and/or any of its or their respective Affiliates, on the one hand, and the Sellers or Seller and/or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect Skadden may represent the Seller in such dispute even though the interests of the Seller may be directly adverse to the TransactionsPurchaser, the Company or any of their Affiliates and even though Skadden (i) may have represented the Company in a matter substantially related to such dispute, or (ii) may be handling ongoing matters for the Purchaser or the Company ((i) and (ii), collectively, “Unrelated Matters”); (b) waives any conflict in connection therewith; and (c) agrees that each shall not assert any claim against Skadden in respect of legal services provided to the Company or its Affiliates by Skadden in connection with this Agreement or the transactions contemplated hereby. The Purchaser (on its behalf and on behalf of its Affiliates) further agrees that, notwithstanding anything in this Agreement to the contrary, as to all communications among Seller CounselSkadden, the First Closing Acquired Entities (with respect to communications prior to the First Closing)Seller, the Second Closing Acquired Entities Company and/or the Company Subsidiaries (with respect to communications prior to the Second Closing), the Sellers or including any of their respective Affiliatesdirectors, officers, managers, employees or agents) that relate in any way to this Agreement, the Ancillary Agreements, the Confidentiality Agreement or the transactions contemplated hereby or thereby or the negotiation of the same (but, for the avoidance of doubt, excluding the Unrelated Matters), the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely to the Sellers or their Affiliates Altice International S.à x.x (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing“Xxxxxx International”), and may shall be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Altice International and shall not pass to or be claimed by Buyerthe Purchaser, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company or any of their respective Affiliates after the Closing. Purchaser (on its behalf and on behalf of its Affiliates, ) understands and (ii) Seller Counsel agrees that the consummation of the transactions contemplated by this Agreement may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel result in the course inadvertent disclosure of information that may be confidential and/or subject to a claim of privilege. The Purchaser (on its behalf and on behalf of its representation Affiliates) further understands and agrees that any disclosure of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is that may be confidential and/or subject to attorney-client privilege, attorney work product protection, a claim of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates privilege shall not have access to prejudice or otherwise constitute a waiver of any such communications, or to the files claim of Seller Counsel, whether or not any Applicable Closing occursprivilege. Without limiting the generality of Notwithstanding the foregoing, upon and after each Applicable Closing, (A) to in the extent event that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities a dispute arises after the First Closing and between the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to BuyerPurchaser, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer Company or any of its their Affiliates (including and a third Person other than a Party to this Agreement, the First Closing Acquired Entities after Company may assert the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior prevent disclosure of confidential communications by Skadden to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), third Person. Skadden shall be entitled to waive such privilege only with a third-party beneficiary for the consent purposes of the Sellers, not to be unreasonably withheld, conditioned or delayedthis Section 11.17.
Appears in 1 contract
Legal Representation. Following consummation of the transactions contemplated hereby, Xxxxxx, Xxxxx & Bockius LLP may serve as counsel to any Seller (aincluding Sellers’ Representative) It is acknowledged in connection with any litigation, claim or obligation arising out of or relating to this Agreement or the transactions contemplated by this Agreement notwithstanding such representation or any continued representation of any other person (including Sellers’ Representative), and each of the Parties that the First Closing Acquired Entitiesparties hereto consents thereto and waives any conflict of interest arising therefrom. Any privilege attaching as a result of Xxxxxx, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx Xxxxx & Xxxxxxx LLP (collectively, “representing a Seller Counsel”) to act as their counsel or the Company in connection with the Transactionstransactions contemplated by this Agreement shall survive the Closing and shall remain in effect, provided that such privilege from and after the Closing shall be assigned to and controlled by Sellers. In furtherance of the foregoing, each of the parties agree to take the steps necessary to ensure that any privilege attaching as a result of Xxxxxx, Xxxxx & Bockius LLP representing any Seller Counsel has not acted as counsel for any other Party and/or the Company in connection with the Transactionstransactions contemplated by this Agreement shall survive the Closing, remain in effect and that none be assigned to and controlled by Sellers. As to any privileged attorney client communications between Xxxxxx, Xxxxx & Xxxxxxx LLP and Sellers or the Company prior to the Closing Date (collectively, the “Privileged Communications”), Purchaser, together with any of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree thatits affiliates (including, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second ClosingCompany), successors or assigns, agree that no such party may use or rely on any of its the Privileged Communications in any action or their respective Affiliates, on claim against or involving any of the one hand, and the Sellers parties hereto or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities affiliates after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates . Purchaser (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities Company after the First Closing and Closing) further agrees that Xxxxxx, Xxxxx & Bockius LLP’s retention by the Second Closing Acquired Entities after the Second Closing), Company shall be entitled to waive such privilege only with the consent deemed completed and terminated without any further action by any person effective as of the Sellers, not to be unreasonably withheld, conditioned or delayedClosing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Factset Research Systems Inc)
Legal Representation. (a) It is acknowledged by each of Only the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities Seller and the Sellers have retained Xxxxxx Company shall be considered clients of Xxxxxx, Xxxx & Xxxxxxx Xxxxxxxx LLP (collectively, “Seller CounselXxxxxx Xxxx”) to act as their counsel in connection with this Agreement and the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with transactions contemplated hereby (the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof“Acquisition Engagement”). The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective AffiliatesBuyer, on the one hand, and Buyer behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after Company) acknowledges and agrees that all confidential communications between the Second Closing, Seller or any of its or their respective Affiliates, on the one hand, Company and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel Xxxxxx Xxxx in the course of its representation of the SellersAcquisition Engagement, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Seller Counsel’s duty of confidentialityand not the Company, and shall not pass to or be claimed, held, or used by the Buyer or the Company upon or after the Closing. Accordingly, the Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller CounselXxxxxx Xxxx relating to the Acquisition Engagement, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ai) to the extent that files of Seller Counsel Xxxxxx Xxxx in respect of the Acquisition Engagement constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) Seller shall hold such property rights, rights and (Bii) Seller Counsel Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Company or the Second Closing Acquired Entities Buyer by reason of any attorney-client relationship between Seller Counsel Xxxxxx Xxxx and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or otherwise; provided, however, that notwithstanding the foregoing, Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisors of the Seller; provided, that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications).
(cb) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, The Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing, the Company) acknowledges and agrees that Xxxxxx Xxxx has acted as counsel for the Seller, the Company and their respective Affiliates for several years and that the Seller reasonably anticipates that Xxxxxx Xxxx will continue to represent it and/or such other parties in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) expressly consents to Xxxxxx Xxxx’x representation of the Seller and/or its Affiliates and/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 Seller or any of its Affiliates, on the other hand, are adverse, including any matter relating to the transactions contemplated by this Agreement, and whether or not such matter is one in which Xxxxxx Xxxx may have previously advised the Seller, the Company or their respective Affiliates.
(c) From and after the Closing, the Company shall cease to have any attorney-client relationship with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is expressly engaged in writing by the Company to represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Second Closing Acquired Entities Seller and/or any of its Affiliates or (ii) the Seller and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxxxx Xxxx after the Second Closing)Closing shall not affect the foregoing provisions hereof. Furthermore, Xxxxxx Xxxx, in its sole discretion, shall be entitled permitted to withdraw from representing the Company in order to represent or continue so representing the Seller.
(d) The Seller, the Company and the Buyer consent to the arrangements in this Section 10.20 and waive such privilege only any actual or potential conflict of interest that may be involved in connection with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedany representation by Xxxxxx Xxxx permitted hereunder.
Appears in 1 contract
Samples: Share Purchase Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Company Entities and the Sellers Seller have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Seller’s Counsel”) to act as their counsel in connection with the Transactions, transactions contemplated hereby and that Seller Xxxxxx’s Counsel has not acted as counsel for any other Party in connection with the Transactions, transactions contemplated hereby and that none of the other Parties has the status of a client of Seller Seller’s Counsel for conflict of interest or any other purposes as a result thereof. The Sellers Seller and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Seller or any of its Affiliates, on the one hand, and Buyer and or any of its Affiliates (including any of the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), on the other hand, are adverse, arises after the Applicable Closing between Buyer, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingCompany Entities), on the one hand, and the Sellers Seller and their respective its Affiliates, on the other hand, Seller Seller’s Counsel may represent any or all of the Sellers and their Seller or any of its Affiliates in such dispute, dispute even though the interests of the Sellers Seller and their its Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities Buyer or the Second Closing Acquired Company Entities, and even though Seller Seller’s Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Company Entities in any matter substantially related to such dispute.
(b) The Sellers Seller and Buyer and their respective Affiliates, including following the Closing with respect to the First Closing Acquired Entities and the Second Closing Acquired Company Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, any of the First Closing Acquired Company Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers Seller or any of their respective its Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactionstransactions contemplated by this Agreement or otherwise, (i) as to all communications among Seller Seller’s Counsel, the First Closing Acquired Entities (Company Entities, Seller or any of its Affiliates with respect to communications prior to the First Closing)negotiation, performance and consummation of the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliatestransactions contemplated by this Agreement, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers Seller or their its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), and may be controlled by the Sellers Seller or their its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second ClosingCompany Entities, or any of their respective Affiliates, and (ii) Seller Seller’s Counsel may disclose to the Sellers Seller or their respective its Affiliates any information with respect to the negotiation, performance and consummation of the transactions contemplated by this Agreement learned by Seller Seller’s Counsel in the course of its representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Company Entities or their respective AffiliatesAffiliates in connection with the transactions contemplated hereby, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller protection or Seller’s Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Seller’s Counsel, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (A) to the extent that files of Seller Seller’s Counsel with respect to the negotiation, performance and consummation of the transactions contemplated by this Agreement constitute property of the client, only the Sellers Seller and their respective its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (B) Seller Seller’s Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, Buyer or any of the First Closing Acquired Entities or the Second Closing Acquired Company Entities by reason of any attorney-client relationship between Seller Xxxxxx’s Counsel and any of the First Closing Acquired Company Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Company Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, its Affiliates and any Person representing themthem with respect to the negotiation, performance and consummation of the transactions contemplated by this Agreement that occurred at any time prior to such Applicable the Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSeller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Consolidated Edison Inc)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree further agrees that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications between and among Seller Counselall counsel for the Seller, the First Closing Acquired Entities Company or their respective Affiliates (with respect to communications prior to the First Closingincluding Xxxxx Day), the Second Closing Acquired Entities (with respect to communications prior Seller, the Company or their respective Affiliates that relate in any way to the Second Closing)transactions contemplated by or in connection with this Agreement (collectively, the Sellers or any of their respective Affiliates“Privileged Communications”), the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely with respect to the Sellers or their Affiliates (other than Privileged Communications belongs to the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Seller, and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Seller and the Second Closing Acquired Entities after the Second Closing), and shall will not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including including, following the First Closing Acquired Entities Closing, the Company). The Privileged Communications are the property of the Seller and, from and after the First Closing and Closing, none of the Second Closing Acquired Entities after Buyer, its Affiliates (including, following the Second Closing, the Company) shall have or any Person purporting to act on behalf of or through the right Buyer or such Affiliates will seek to assert or waive any obtain the Privileged Communications, whether by seeking a waiver of the attorney-client privilege with respect to any communication between the First Closing Acquired Entities or through other means. The Buyer and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself its and its Affiliates (including including, following the First Closing Acquired Entities Closing, the Company), together with any of their respective successors or assigns, further agree that no such party may use or rely on any of the Privileged Communications in any action against or involving any of the Seller or any of their respective Affiliates after the First Closing Closing. The Privileged Communications may be used by the Seller or any of their respective Affiliates in connection with any dispute that relates to the transactions contemplated by or in connection with this Agreement, including in any claim for indemnification brought by the Buyer. Notwithstanding the foregoing, in the event that a dispute arises between the Buyer or any of its Affiliates and the Second Closing Acquired Entities a third party (other than a party to this Agreement or any of its Affiliates) after the Second ClosingClosing (with respect to the Company), shall be entitled the Buyer and its Affiliates may assert the attorney-client privilege to prevent disclosure of confidential communications by counsel to such third party, provided that neither the Buyer nor its Affiliates (including, following the Closing, the Company) may waive such privilege only with without the prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSeller.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Community Choice Financial Inc.)
Legal Representation. Purchaser agrees, on its own behalf and on behalf of each of its directors, officers, managers, employees and Affiliates, that, following the Closing, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP may serve as counsel to Seller and its Affiliates in connection with any matters related to this Agreement and the contemplated transactions, including any litigation, claim or obligation arising out of or relating to this Agreement or the contemplated transactions (the “Acquisition Representation”) notwithstanding any representation by Xxxxxxx Xxxxxxx & Xxxxxxxx LLP prior to the Closing Date of the Acquired Companies. Purchaser and the Acquired Companies hereby (a) It is acknowledged by each of the Parties waive any claim they have or may have that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers is otherwise prohibited from engaging in such Acquisition Representation and Buyer hereby (b) agree that, in the event that any dispute, a dispute arises either before or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, Purchaser and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on Xxxxxxx Xxxxxxx & Xxxxxxxx LLP may represent Seller or any of its Affiliates in such dispute even though the other handinterests of such Person(s) may be directly adverse to Purchaser or the Acquired Companies and even though Xxxxxxx Xxxxxxx & Xxxxxxxx LLP may have represented the Acquired Companies in connection with the Acquisition Representation. Purchaser and the Acquired Companies also further agree that, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to Closing among Xxxxxxx Xxxxxxx & Xxxxxxxx LLP and the First Closing)Acquired Companies, the Second Closing Acquired Entities (with respect to communications prior Seller or Sellers’ Affiliates and Representatives, that relate in any way to the Second Closing), the Sellers or any of their respective AffiliatesAcquisition Representation, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Seller and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Seller and shall not pass to or be claimed by BuyerPurchaser or the Acquired Companies. Notwithstanding the foregoing, in the event that a dispute arises between Purchaser, the First Closing Acquired Entities Companies and a third party other than a Party to this Agreement after the First Closing, the Second Closing Acquired Entities after Companies may control and assert the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesexpectation of client confidence to prevent disclosure of confidential communications by Xxxxxxx Xxxxxxx & Xxxxxxxx LLP to such third party; provided, and any Person representing themhowever, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Companies may not waive such privilege only with without the prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSeller.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nn Inc)
Legal Representation. (a) It is acknowledged Xxxxxxx has been engaged by each of the Parties that Seller to represent the First Closing Acquired Entities, the Second Closing Acquired Entities Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereoftransactions contemplated hereby. The Sellers Purchaser (on its behalf and Buyer hereby agree on behalf of its Affiliates (including, after the Closing, the Company)) hereby: (a) agrees that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, a dispute arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or Purchaser and/or any of its or their respective Affiliates, on the one hand, and the Sellers or Seller and/or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect Skadden may represent the Seller in such dispute even though the interests of the Seller may be directly adverse to the TransactionsPurchaser, the Company or any of their Affiliates and even though Skadden (i) may have represented the Company in a matter substantially related to such dispute, or (ii) may be handling ongoing matters for the Purchaser or the Company ((i) and (ii), collectively, “Unrelated Matters”); (b) waives any conflict in connection therewith; and (c) agrees that each shall not assert any claim against Skadden in respect of legal services provided to the Company or its Affiliates by Skadden in connection with this Agreement or the transactions contemplated hereby. The Purchaser (on its behalf and on behalf of its Affiliates) further agrees that, notwithstanding anything in this Agreement to the contrary, as to all communications among Seller CounselSkadden, the First Closing Acquired Entities (with respect to communications prior to the First Closing)Seller, the Second Closing Acquired Entities Company and/or the Company Subsidiaries (with respect to communications prior to the Second Closing), the Sellers or including any of their respective Affiliatesdirectors, officers, managers, employees or agents) that relate in any way to this Agreement, the Ancillary Agreements, the Confidentiality Agreement or the transactions contemplated hereby or thereby or the negotiation of the same (but, for the avoidance of doubt, excluding the Unrelated Matters), the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely to the Sellers or their Affiliates Altice International S.à x.x (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing“Xxxxxx International”), and may shall be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Altice International and shall not pass to or be claimed by Buyerthe Purchaser, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company or any of their respective Affiliates after the Closing. Purchaser (on its behalf and on behalf of its Affiliates, ) understands and (ii) Seller Counsel agrees that the consummation of the transactions contemplated by this Agreement may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel result in the course inadvertent disclosure of information that may be confidential and/or subject to a claim of privilege. The Purchaser (on its behalf and on behalf of its representation Affiliates) further understands and agrees that any disclosure of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is that may be confidential and/or subject to attorney-client privilege, attorney work product protection, a claim of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates privilege shall not have access to prejudice or otherwise constitute a waiver of any such communications, or to the files claim of Seller Counsel, whether or not any Applicable Closing occursprivilege. Without limiting the generality of Notwithstanding the foregoing, upon and after each Applicable Closing, (A) to in the extent event that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities a dispute arises after the First Closing and between the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to BuyerPurchaser, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer Company or any of its their Affiliates (including and a third Person other than a Party to this Agreement, the First Closing Acquired Entities after Company may assert the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior prevent disclosure of confidential communications by Xxxxxxx to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), third Person. Skadden shall be entitled to waive such privilege only with a third-party beneficiary for the consent purposes of the Sellers, not to be unreasonably withheld, conditioned or delayedthis Section 11.17.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each In any dispute or Proceeding arising after the Effective Time under or in connection with this Agreement or any the other agreement contemplated hereby, the parties agree that any of the Parties that Stockholders shall have the First Closing Acquired Entitiesright, at their election to retain the Second Closing Acquired Entities and the Sellers have retained Xxxxxx firm of Fried, Frank, Harris, Xxxxxxx & Xxxxxxx Xxxxxxxx LLP (collectively, “Seller CounselXxxxx Xxxxx”) to act as their counsel represent such Stockholder in connection with the Transactionssuch matter, and that Seller Counsel has not acted as counsel for any other Party in connection with Parent and the TransactionsSurviving Corporation (on behalf of themselves, their respective Affiliates, directors, officers, employees and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers representatives and their respective Affiliatessuccessors and assigns) hereby irrevocably waive and consent to any such representation in any such matter.
(b) Each of the parties further agrees that, as to all communications among Xxxxx Xxxxx, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)any Stockholder, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely and all other rights to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)any evidentiary privilege belong to such Stockholder, and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Surviving Corporation or any of their respective its Affiliates, and, further, all communications between or among Xxxxx Xxxxx or other legal counsel representing the Company or its Subsidiaries, on the one hand, and the Company or its Subsidiaries, any Stockholder, on the other hand, to the extent related to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or any dispute arising under this Agreement shall be deemed to be protected by the attorney-client privilege and belong solely to such Stockholder, shall be controlled by such Stockholder and shall not pass to or be claimed by any of Parent or the Company or the Company’s Subsidiaries (the “Privileged Communications”).
(c) If the transactions contemplated by this Agreement and the other agreements contemplated hereby are consummated:
(i) the Surviving Corporation and its Subsidiaries shall have no right of access to or control over any of Fried Frank’s records containing or reflecting the Privileged Communications, which shall become the property of (and be controlled by) the Stockholders; and
(ii) Seller Counsel the Company and Parent hereby acknowledge that it would be impracticable to remove from the records (including emails and other electronic files) of the Company and its Subsidiaries any of the Privileged Communications, and Parent hereby agrees that it and its Affiliates (including the Surviving Corporation and its Subsidiaries) shall not review, use, examine or rely upon, or knowingly access, such Privileged Communications that may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel remain in the course of its representation records of the SellersSurviving Corporation or its Subsidiaries, and the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to parties agree that no attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access or other privilege or protection is waived or intended to any be waived by allowing such communications, or material to remain in the files of Seller Counsel, whether the Surviving Corporation or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseits Subsidiaries.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Merger Agreement (United Rentals North America Inc)
Legal Representation. (a) It is acknowledged by each Each of the Parties acknowledges that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP (collectively, “Seller CounselPillsbury”) currently serves as counsel to act as their counsel both (i) the Company Entities and (ii) Seller, including in connection with the Transactionsnegotiation, preparation, execution and that Seller Counsel has not acted as counsel for any other Party in connection with delivery of this Agreement, the Transactions, Transaction Documents and that none the consummation of the other Contemplated Transactions. Each of the Parties has the status agrees that all communications and documents (or such portions of a client such communications and documents as applicable) exchanged in any form or format whatsoever between or among any of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between BuyerPillsbury, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Company Entities or the Second Closing Acquired EntitiesSeller, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect that relate to the Transactionsconsideration, (i) as to all communications among Seller Counselnegotiation, documentation and consummation of the First Closing Acquired Entities (with respect to communications Agreement, any of the Transaction Documents or the Contemplated Transactions or any alternative transaction at or prior to the First Closing)Closing (collectively, the Second Closing Acquired Entities (with respect “Deal Communications”) shall be deemed to communications prior be retained and owned solely by Seller. All Deal Communications that are subject to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, the attorney work product doctrine or any other privilege or protection (collectively, the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence belongs relating thereto shall belong solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Seller, and may shall be controlled solely by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Seller and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Buyer or any of their respective its Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates Xxxxxxxxx shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications Deal Communications, Privileged Deal Communications or files to Buyer, the First Closing Acquired Entities Buyer or the Second Closing Acquired Entities its Affiliates by reason of any attorney-client relationship between Seller Counsel Pillsbury and the First Closing Acquired Entities and Company Entities. To the Second Closing Acquired Entities (as applicable) extent that files or otherwise.
(c) If and other materials maintained by Pillsbury constitute property of its clients, only Seller shall hold such property rights with respect to any representation prior to the extentClosing of the Company Entities, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) Pillsbury shall have the right no duty to assert reveal or waive disclose any such files or other materials by reason of any attorney-client privilege with respect to any communication relationship between Pillsbury, on the First Closing Acquired Entities one hand, and the Second Closing Acquired Entities (as applicable) or their respective AffiliatesCompany Entities, on the other hand. This Section 10.19 is for the benefit of Seller and Pillsbury, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf Pillsbury is an express third-party beneficiary of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), this Section 10.19. This Section 10.19 shall be entitled to waive such privilege only with irrevocable, and no term of this Section 10.19 may be amended, waived or modified without the prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedPillsbury.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Clearwater Paper Corp)
Legal Representation. (a) It is acknowledged by each of Buyer and the Parties Company acknowledge and agree that the First Closing Acquired Entitiesdocuments and papers in the client files of Xxxxxxx Coie LLP and any other law firm that may have represented the Company or any firms that may have represented the Sellers (all such firms, collectively, the Second Closing Acquired Entities "Firms") relating to this Agreement and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectivelytransactions contemplated by this Agreement will, “Seller Counsel”) upon the Closing, be owned by Sellers, and will be held by the Firms for the benefit of Sellers. Such documents and papers in the Firms’ client files will not be provided to act as Buyer or the Company or their counsel Affiliates or their successors or assigns following the Closing. The documents and papers in the Firms’ client files subject to this Section 8.18 will include all notes, memoranda and correspondence between the Firms, Sellers, the Company and its officers, directors and other agents regarding this Agreement and the related transactions, and all attorney work-product in connection with this Agreement and related transactions, but will exclude any documents not related to this Agreement or the Transactionstransactions contemplated by this Agreement, including, without limitation, corporate and stock records that Seller Counsel has not acted customarily are kept in a minute book, which documents will belong to the Company. Each of the parties to this Agreement hereby agrees that Xxxxxxx Coie LLP may serve as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closingto Sellers, on the one hand, and the Sellers and their respective AffiliatesCompany, on the other hand, Seller Counsel may represent any or all in connection with the negotiation, preparation, execution and delivery of this Agreement and the consummation of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entitiestransactions contemplated hereby, and even though that following the Closing, Xxxxxxx Coie LLP may serve as counsel to any Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliatesdirector, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entitiesmanager, acknowledge and agree thatmember, partner, owner, officer, employee or Affiliate thereof in connection with any future disputesclaim, lawsuits, actions, proceedings, investigations dispute or other mattersmatter arising out of or relating to this Agreement or the transactions contemplated by this Agreement (including in connection with any matters contemplated by Section 1.02, including Section 1.03 or Section 6.01 hereof), notwithstanding such representation (or any dispute between Buyercontinued representation) of Seller, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers Company or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation each of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities parties hereto hereby waives any conflict of interest arising therefrom or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwisein connection therewith.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Legal Representation. In any proceeding by or against any Parent Indemnified Party wherein any Parent Indemnified Party asserts or prosecutes any claim under, or otherwise seeks to enforce, this Agreement, Parent agrees in connection with such proceeding (a) It is acknowledged by each that no Parent Indemnified Party or counsel therefor will move to seek disqualification of Xxxxxxxxx Xxxxxxx, (b) to waive any right any Parent Indemnified Party may have to assert the attorney-client privilege against Xxxxxxxxx Traurig with respect to any communication or information contained in Xxxxxxxxx Traurig’s possession or files and (c) to consent to the representation of the Parties Company Shareholder and its Affiliates by Xxxxxxxxx Traurig, notwithstanding that Xxxxxxxxx Xxxxxxx has or may have represented the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest Company Shareholder or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Acquired Companies) as counsel in connection with any matter, including any transaction (including the Transactions), negotiation, investigation, proceeding or action, prior to the Closing. This consent and waiver extends to Xxxxxxxxx Traurig’s representing the Company Shareholder against Parent or any Parent Indemnified Party in any dispute, litigation, arbitration or mediation in connection with this Agreement or the Transactions including any matter arising under Article II. Any privilege attaching as a result of Xxxxxxxxx Traurig’s representing the Company or any of its Subsidiaries in connection with the Transactions shall survive the Closing Acquired Entities and shall remain in effect, provided that such privilege from and after the First Closing shall be assigned to and controlled by the Second Closing Company Shareholder. In furtherance of the foregoing, each of the parties hereto agrees to take the steps necessary to ensure that any privilege attaching as a result of Xxxxxxxxx Traurig representing the Company or any of its Subsidiaries in connection with the Transactions shall survive the Closing, remain in effect and be assigned to and controlled by the Company Shareholder. The Parent Indemnified Parties acknowledge that the Company Shareholder has a reasonable expectation of privacy with respect to its communications (including any communications using the Acquired Entities after the Second ClosingCompanies’ computer and email systems and servers), on with Xxxxxxxxx Xxxxxxx prior to the other handClosing, are adversesolely to the extent that such communication reasonably relates to the transactions consummated pursuant to this Agreement, arises after including the Applicable Closing Company’s preparation for the transactions contemplated by this Agreement. Parent agrees that it will, and will cause the Acquired Companies to, respect the confidentiality and privileged nature of all such communications between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingXxxxxxxxx Traurig, on the one hand, and the Sellers and their respective AffiliatesAcquired Companies and/or the Company Shareholder, on the other hand, Seller Counsel may represent and Parent agrees that it will not, and will cause the Acquired Companies not to, seek discovery of any such communications or all otherwise claim any right of access or use to any such communications. As to any privileged attorney client communications between Xxxxxxxxx Xxxxxxx and the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to BuyerCompany Shareholder, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company or any of its or their respective AffiliatesSubsidiaries prior to the Closing Date (collectively, on the one hand“Privileged Communications”), the Parent, the Merger Subsidiary and the Sellers or Company (including, after the Closing, the Surviving Corporation), together with any of their respective Affiliates, successors or assigns, agree that no such party may use or rely on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and Privileged Communications in any action or claim against or involving any of the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities parties hereto after the First Closing Closing. The Surviving Corporation further agrees that, on its own behalf and the Second Closing Acquired Entities after the Second Closing)on behalf of its Subsidiaries, and may be controlled Xxxxxxxxx Traurig’s retention by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer Surviving Corporation or any of its Affiliates (including the First Closing Acquired Entities after the First Closing respective Subsidiaries shall be deemed completed and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive terminated without any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and further action by any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent effective as of the Sellers, not to be unreasonably withheld, conditioned or delayedClosing.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx (“WSGR”) has acted as counsel for the Parties that the First Closing Acquired Entitiessecurityholders, the Second Closing Acquired Entities Company (prior to and including the Effective Time) and the Sellers have retained Xxxxxx & Xxxxxxx LLP Stockholder Representative (collectively, the “Seller CounselCompany Parties”) to act as their counsel in connection with the Transactionstransaction documents and the transactions contemplated hereby and thereby (the “Acquisition Engagement”) and, and in that Seller Counsel has connection, not acted as counsel for any other Party Person, including, without limitation, Parent, Buyer or any of its Affiliates (including the Surviving Corporation). Only the Company Parties shall be considered clients of WSGR in the Acquisition Engagement. If the Stockholder Representative so desires, WSGR shall be permitted, without the need for any future waiver or consent, to represent any of the securityholders or the Stockholder Representative after the Closing in connection with any matter related to the Transactions, and that none matters contemplated by any of the other Parties has the status of a client of Seller Counsel for conflict of interest transaction documents or any other purposes as a result thereof. The Sellers disagreement or dispute relating thereto and Buyer hereby agree thatmay in connection therewith represent the Representatives or Affiliates of the securityholders and the Stockholder Representative, in any of the event that foregoing cases including, without limitation, in any action, dispute, litigation or other adversary proceeding against, with or involving Parent, Buyer, the Surviving Corporation or any other matter in which of their Representatives or Affiliates.
(b) To the interests of Sellers and their respective Affiliatesextent that communications between a Company Party, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)WSGR, on the other hand, are adverserelate to the Acquisition Engagement, arises after such communication shall be deemed to be attorney-client confidences that belong solely to the Applicable Closing between BuyerStockholder Representative, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, for and on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all behalf of the Sellers and their Affiliates in such dispute, even though the interests secuityholders. Neither Parent nor any of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective its Affiliates, including the Buyer and Surviving Corporation, shall have access to (and Parent hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communications or the files or work product of WSGR, to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect extent that they relate to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective AffiliatesAcquisition Engagement, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, Parent acknowledges and agrees, for itself and on behalf of its Affiliates, including the Surviving Corporation, upon and after each Applicable the Closing: (i) the Stockholder Representative, for and on behalf of the securityholders, and WSGR shall be the sole holders of the attorney-client privilege of the Company Parties with respect to the Acquisition Engagement, and neither Parent nor any of its Affiliates, including the Buyer and the Surviving Corporation, shall be a holder thereof; (Aii) to the extent that files or work product of Seller Counsel WSGR in respect of the Acquisition Engagement constitute property of the clienta client of WSGR, only the Sellers Stockholder Representative, for and their respective Affiliates (other than on behalf of the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) securityholders, shall hold such property rights of any Company Parties and have the right to waive or modify such property rights, ; and (Biii) Seller Counsel XXXX shall have no duty whatsoever to reveal or disclose any such attorney-client communications communications, files or files work product to BuyerParent or any of its Affiliates, including the First Closing Acquired Entities or Buyer and the Second Closing Acquired Entities Surviving Corporation, by reason of any attorney-client relationship between Seller Counsel WSGR and the First Closing Acquired Entities Company Parties or otherwise; provided that, to the extent any communication is both related and unrelated to the Acquisition Engagement, WSGR shall provide (and the Second Closing Acquired Entities (as applicableStockholder Representative, for and on behalf of the other Company Parties, shall instruct WSGR to provide) appropriately redacted versions of such communications, files or otherwisework product to Parent or its Affiliates, including the Buyer and the Surviving Corporation. Notwithstanding the foregoing, in the event that a dispute arises between any of Parent, Buyer or the Surviving Corporation or their Affiliates, on the one hand, and any of the secuityholders or the Stockholder Representative, on the other hand, concerning the matters contemplated in any of the transaction documents, Parent, for itself and on behalf of its Affiliates and the Buyer, Surviving Corporation and its Affiliates, agrees that Parent, Buyer, the Surviving Corporation and their Affiliates shall not offer into evidence or otherwise attempt to use or assert the foregoing attorney-client communications, files or work product against the Stockholder Representative or the securityholders.
(c) If and to Without limitation of the extentforegoing, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any other communication between a Company Party, on the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesone hand, and any Person representing themRepresentative of a Company Party (other than WSGR) or any other third person (other than Parent and its Affiliates), that occurred at any time prior to such Applicable the Closing and relating to the Acquisition Engagement shall be deemed confidential information of the securityholders, and from and after the Closing, Buyersuch communications shall be deemed to be confidential information that belong solely to the Stockholder Representative, for and on behalf of itself and its Affiliates (including the First Closing Acquired Entities after securityholders. Prior to the First Closing and Closing, the Second Closing Acquired Entities after the Second Closing), Company shall be entitled to waive transfer possession of such privilege only with communications (including any tangible and intangible copies of such communications) to the consent Stockholder Representative. Notwithstanding the foregoing, in the event that a dispute arises between any of Parent, Buyer or the Surviving Corporation or their Affiliates, on the one hand, and any of the Sellerssecurityholders or the Stockholder Representative, on the other hand, concerning the matters contemplated in any of the transaction documents Parent, for itself and on behalf of its Affiliates and the Buyer, the Surviving Corporation and its Affiliates, agrees that Parent, the Buyer the Surviving Corporation and their Affiliates shall not offer into evidence or otherwise attempt to be unreasonably withheld, conditioned use or delayedassert the foregoing communications against the Stockholder Representative or the securityholders.
Appears in 1 contract
Samples: Merger Agreement (Teleflex Inc)
Legal Representation. (a) It is acknowledged by each Each of the Parties acknowledges and agrees that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers Existing Counsel may have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party Torch, each ContentCo Entity and/or their respective Affiliates in connection with this Agreement and the Transactions, and that none Transactions (the “Transactions Engagement”).
(b) Each of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers acknowledges and Buyer hereby agree thatagrees that all confidential communications between Torch, in the event that any dispute, or any other matter in which the interests of Sellers and each ContentCo Entity and/or their respective Affiliates, on the one hand, and Buyer Existing Counsel, on the other hand, in the course of the Transactions Engagement, and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to Torch and their Affiliates (excluding the ContentCo Group), and not United or any of its Subsidiaries, and shall not pass to or be claimed, held, or used by United or any of its Subsidiaries upon or after the Closing. Accordingly, United shall not have access to any such communications, or to the files of Existing Counsel relating to the Transactions Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of Existing Counsel in respect of the Transactions Engagement constitute property of the client, only Torch and their Affiliates (excluding the ContentCo Group) shall hold such property rights, and (ii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to United or any of its Subsidiaries by reason of any attorney-client relationship between Existing Counsel and United or any of its Subsidiaries or otherwise. If and to the extent that, at any time subsequent to Closing, United or any of its Affiliates (including after the Closing, the ContentCo Group) shall have the right to assert or waive any attorney-client privilege with respect to any communication between any ContentCo Entity or their respective Affiliates and Existing Counsel that occurred at any time prior to the Closing, United, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the ContentCo Group) shall be entitled to waive such privilege only with the prior written consent of Torch (not to be unreasonably withheld, delayed or conditioned).
(c) Each of the Parties acknowledges and the Second Closing Acquired Entities agrees that Existing Counsel may continue to represent Torch or its respective Affiliates in future matters. Accordingly, United, on behalf of itself and its Affiliates (including after the Second Closing, the ContentCo Group), expressly: (i) consents to Existing Counsel’s representation of Torch and its Affiliates in any matter, including any post-Closing matter in which the interests of United or its Affiliates (including after the Closing, the ContentCo Group), on the one hand, and Torch or its Affiliates, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in including any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect relating to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers and whether or any of their respective not such matter is one in which Existing Counsel may have previously advised Torch or its Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, ; and (ii) Seller Counsel may disclose consents to the Sellers disclosure by Existing Counsel to Torch or their respective its Affiliates of any information learned by Seller Existing Counsel in the course of its representation of the SellersTorch, the First Closing Acquired Entities, the Second Closing Acquired ContentCo Entities or and/or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller or Existing Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(cd) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, BuyerUnited, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the ContentCo Group) further covenants and agrees that each shall not assert any claim, and that it hereby waives any claim, against Existing Counsel in respect of legal services provided to Torch or any of its Subsidiaries by Existing Counsel in connection with the Second Closing Acquired Entities Transactions Engagement.
(e) Upon and after the Second Closing), each ContentCo Entity shall be entitled cease to waive have any attorney-client relationship with Existing Counsel, unless and to the extent Existing Counsel is specifically engaged in writing by United or a ContentCo Entity to represent such privilege only with company after the Closing. Any such representation by Existing Counsel after the Closing shall not affect the foregoing provisions hereof.
(f) The Parties consent to the arrangements in this Section 10.12 and agree to take, and to cause their Affiliates to take, all steps necessary to implement the intent of the Sellers, this Section 10.12 and not to be unreasonably withheld, conditioned take or delayedcause their Affiliates to take positions contrary to the intent of this Section 10.12. Each Party further agrees that each Existing Counsel is a third-party beneficiary of this Section 10.12.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by Following the Closing, Xxxxx Lord LLP may serve as counsel to Seller and its Non-Recourse Parties in connection with any litigation, claim or obligation arising out of or relating to this Agreement, notwithstanding such representation or any continued representation of any other Person, and each of the Parties (on behalf of itself and each of its Non-Recourse Parties) consents thereto and waives any conflict of interest arising therefrom. The decision to represent Seller and its Affiliates shall be solely that of Xxxxx Lord LLP. Any privilege attaching as a result of Xxxxx Lord LLP representing Seller or any of its Non-Recourse Parties (including the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”Company) to act as their counsel in connection with this Agreement shall survive the TransactionsClosing and shall remain in effect; provided that such privilege from and after the Closing shall be assigned to and controlled by Seller; provided, and further, that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, dispute arises after the Closing between Buyer or any other matter in which the interests of Sellers and their respective AffiliatesCompany, on the one hand, and Buyer and its Affiliates (including any party other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers Parties or any of their respective Affiliates, on the other hand, or then Buyer and the Company may assert such privilege to prevent the disclosure of any Privileged Communications by Xxxxx Lord LLP to such third party. In furtherance of the foregoing, each of the Parties agrees to take the steps necessary to ensure that any privilege attaching as a result of Xxxxx Lord LLP representing the Company in connection with or this Agreement shall survive the Closing, remain in effect and be assigned to and controlled by Seller. As to any privileged attorney client communications between any other Persons, with respect to Xxxxx Lord LLP and the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications Company prior to the First ClosingClosing Date (collectively, the “Privileged Communications”), Buyer, together with any of its Affiliates, successors or assigns, agree that no such party may use or rely on any of the Second Closing Acquired Entities (with respect to communications prior to Privileged Communications in any action or claim against or involving any of the Second Closing), the Sellers Parties or any of their respective Affiliates, the attorneyNon-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities Recourse Parties after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Summit Midstream Partners, LP)
Legal Representation. (a) It is acknowledged by each Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company), acknowledges and agrees that Xxxxxx, Xxxx & Xxxxxxxx LLP (“Xxxxxx Xxxx”) has acted as counsel for Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxxxx Xxxx has not acted as counsel for any other Party in connection with Person, including Buyer.
(b) Buyer shall not have access to the Transactionsfiles of Xxxxxx Xxxx relating to the Acquisition Engagement, whether or not the Closing occurs. Buyer, on behalf of itself and that none its Affiliates (including after the Closing, the Company) expressly (i) consents to Xxxxxx Xxxx’x representation of Seller and/or its Affiliates and/or any of their respective agents (if any of the other Parties has foregoing Persons so desire) in any matter that relates to this Agreement and the status of a client of Seller Counsel for conflict of interest or transactions contemplated hereby, including any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other post-Closing matter in which the interests of Sellers Buyer and their respective Affiliatesthe Company, on the one hand, and Buyer and Seller or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Affiliates, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose consents to the Sellers disclosure by Xxxxxx Xxxx to Seller or their respective its Affiliates of any information learned by Seller Counsel Xxxxxx Xxxx in the course of its representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective AffiliatesAffiliates in connection with this Agreement and the transactions contemplated hereby, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s or Xxxxxx Xxxx’x duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the Company) further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Second Closing Acquired Entities Company or its Affiliates by Xxxxxx Xxxx in connection with this Agreement or the transactions contemplated hereby.
(d) From and after the Second Closing), the Company shall be entitled cease to waive such privilege only have any attorney-client relationship with Xxxxxx Xxxx, unless and to the consent of extent Xxxxxx Xxxx is expressly engaged in writing by the Sellers, not Company to be unreasonably withheld, conditioned or delayedrepresent the Company after the Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Atmos Energy Corp)
Legal Representation. Following consummation of the Transactions, V&E LLP and Xxxxxxx Xxxxx (aeach, “Company Counsel”) It is acknowledged by may serve as counsel to the Sellers and their Non-Recourse Parties, in connection with any litigation, claim or obligation arising out of or relating to this Agreement or the Transactions notwithstanding such representation or any continued representation of any other Person (including the Sellers and their Affiliates), and each of the parties hereto (on behalf of itself and each of its Non-Recourse Parties) consents thereto and waives any conflict of interest arising therefrom. The decision to represent the Sellers and their Non-Recourse Parties shall be solely that of any such Company Counsel. Any attorney-client privilege, work product protection or expectation of confidentiality arising out of or as a result of any Company Counsel’s representing of the First Company Group in any matter relating in any way to the Sellers and their Affiliates or in connection with the Transactions (collectively, 85 the “Privileges”) shall survive the Closing Acquired Entitiesand shall remain in full force and effect; provided, that notwithstanding anything to the contrary in this Agreement or any other Transaction Document, the Second Closing Acquired Entities Privileges and all information, data, documents or communications, in any format and by whomever possessed, to the Sellers have retained Xxxxxx & Xxxxxxx LLP extent covered by or subject to any of the Privileges (collectively, “Seller CounselPrivileged Materials”) to act as their counsel in connection with shall, from and after the TransactionsClosing, automatically be assigned and exclusively belong to, and that Seller Counsel has not acted be controlled by, the Sellers. For the avoidance of doubt, as counsel for to any other Party in connection Privileged Materials, the Purchaser and the Company, together with the Transactions, and that none any of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, successors or assigns, agree that no such party may use or rely on any of the one hand, and Buyer and its Affiliates (including Privileged Materials in any action or claim against or involving any of the First Closing Acquired Entities parties hereto or any of their respective Non-Recourse Parties after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between of the First Closing Acquired Entities Privileges against the Company Group. The Purchaser further agrees that, on its own behalf and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself its Subsidiaries (including, following the Closing, the Company Group), any Company Counsel’s retention by the Company Group shall be deemed completed and terminated without any further action by any Person effective as of the Closing. The Company Group shall cause each of its future direct and indirect Subsidiaries and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled their successors and assigns that are not signatories to waive such privilege only this Agreement to fulfill and comply with the consent terms of this Section 12.15 and take any and all other steps necessary to effect the Sellers, not to be unreasonably withheld, conditioned or delayedagreements in this Section 12.15.
Appears in 1 contract
Samples: Stock Purchase Agreement (Forum Energy Technologies, Inc.)
Legal Representation. The Purchaser and the Company hereby agree, on their own behalf and on behalf of their directors, managers, members, officers, employees and Affiliates, and each of their successors and assigns (all such parties, the “Waiving Parties”), that, following the Closing, Sidley may represent the Seller or any manager, director, member, partner, officer, employee or Affiliate of the Seller in connection with any dispute, litigation, claim, proceeding or obligation arising out of the negotiation, preparation, execution, delivery and performance of this Agreement or the transactions contemplated hereby (any such representation, the “Post-Closing Representation”) notwithstanding its pre-Closing representation (or any continued representation) of the Company. Each of the Purchaser and the Company on behalf of itself and the Waiving Parties hereby consents to any Post-Closing Representation and (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities irrevocably waives (and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”will not assert) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for actual or potential conflict of interest or any other purposes as a result thereof. The Sellers argument that Sidley is otherwise prohibited from engaging in such representation, and Buyer hereby agree (b) agrees that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities a dispute arising after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing Purchaser or the Second Closing Acquired Entities after the Second ClosingCompany, on the one hand, and the Sellers and their respective Seller or any of the Seller’s Affiliates, on the other hand, Sidley may represent, solely in a Post-Closing Representation, the Seller Counsel may represent or any or all of the Sellers and their Seller’s Affiliates in such dispute, Post-Closing Representation even though the interests of the Sellers and their Affiliates such person(s) may be directly adverse to Buyer, the First Closing Acquired Entities Purchaser or the Second Closing Acquired Entities, Company and even though Seller Counsel formerly Sidley may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities Company in any matter a manner substantially related to such dispute.
(b) . The Sellers Purchaser and Buyer the Company each acknowledges that the foregoing provision applies whether or not Sidley provides legal services to the Company after the Closing Date. Each of the Purchaser and the Company, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications between the Company and the Seller and their respective Affiliatescounsel, including Sidley, 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 contemplated hereby, are privileged communications that are also subject to the expectation of client confidence, that do not remain with the Company following the Closing, and instead remain with and are controlled by the Seller (the “Privileged Communications”). For the avoidance of doubt, with respect to privileged communications between the First Closing Acquired Entities Company and Sidley that do not relate to the Second Closing Acquired Entitiesnegotiation, acknowledge preparation, execution, delivery and agree thatperformance of this Agreement, the privilege will remain with the Company and is not waived under this Section 10.17. Notwithstanding the foregoing, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any the event that a dispute arises between Buyerthe Purchaser, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company or any of its or their respective AffiliatesSubsidiaries and a third party other than a party to this Agreement after the Closing, on the one handCompany may assert the attorney-client privilege to prevent disclosure of confidential communications by Sidley to such third party; provided, however neither the Company nor any of its Subsidiaries may waive such privilege without the prior written consent of the Seller. The Purchaser and the Sellers or Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the other handPrivileged Communications, whether located in the records or email server of the Company, or with otherwise, in any action against or between involving any other Personsof the Parties after the Closing, with respect and the Purchaser and the Company agree not to assert that the privilege has been waived as to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and Privileged Communication that may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel located in the course of its representation records or email server of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseCompany.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree Purchaser agrees that, in as to all communications prior to the event that any dispute, or any other matter in which the interests of Sellers and their respective AffiliatesClosing between Jxxxx Day, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Seller, on the other hand, are adverse, arises after the Applicable Closing between BuyerNII Holdings, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, extent that they are in respect of to the transactions contemplated by this Agreement (i) as to all communications among Seller Counselcollectively, the First Closing Acquired Entities (with respect to communications prior to the First Closing“Privileged Communications”), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely with respect to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Privileged Communications belongs to Seller and/or NII Holdings and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Seller and/or NII Holdings and the Second Closing Acquired Entities after the Second Closing), and shall will not pass to or be claimed by BuyerPurchaser or any of its Affiliates (including, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities Entities). The Privileged Communications are the property of Seller and/or NII Holdings, and, from and after the Second Closing, none of Purchaser or its Affiliates (including the Entities), or any Person purporting to act on behalf of or through Purchaser or its Affiliates (including the Entities) will have the right to obtain such communications, whether by waiver of the attorney-client privilege or through other means. The Privileged Communications may be used by Seller, NII Holdings or any of their respective Affiliates in connection with any dispute that relates to the transactions contemplated by this Agreement, including in any claim brought by Purchaser. Notwithstanding the foregoing, in the event that a dispute arises after the Closing between Purchaser or its Affiliates (including the Entities) and a third party (other than a Party to this Agreement or any of their respective Affiliates), and (ii) Seller Counsel may disclose to the Sellers Purchaser or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after Entities) may assert the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesprevent disclosure of confidential communications by counsel to such third party, and any Person representing themprovided, however, that occurred at any time prior to such Applicable Closing, Buyer, on behalf none of itself and Purchaser or its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Entities) may waive such privilege only with without the prior written consent of the Sellers, Seller (not to be unreasonably withheld, conditioned or delayed).
(b) The Parties agree that Purchaser will not, and will cause any Affiliates (including, after Closing, the Entities) not to, seek to have Jxxxx Day disqualified from representing Seller or its Affiliates in connection with any dispute that may arise between Seller or its Affiliates and any of Purchaser or any of its Affiliates (including, after Closing, the Entities) in connection with this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each Each Party acknowledges that (i) one or more of the Parties that the First Closing Acquired EntitiesCompany Group, the Second Closing Acquired Entities and the Sellers and/or their respective Affiliates have retained Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxx Xxxxxxxx LLP (collectively, the “Seller CounselLaw Firm”) to act as their counsel in connection with the Transactionstransactions contemplated by this Agreement (including the negotiation, preparation, execution and delivery of this Agreement and related agreements, and that Seller Counsel the consummation of the transactions contemplated hereby or thereby) as well as other past and ongoing matters, (ii) the Law Firm has not acted as counsel for Buyer or any other Party of its past, present or future Affiliates in connection with the Transactionstransactions contemplated by this Agreement and (iii) no Person other than the Sellers, and that none of the other Parties Company Group or their respective Affiliates has the status of a Law Firm client of Seller Counsel for conflict of interest or any other purposes purpose as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers (I) waives and their respective Affiliates, on the one handwill not assert, and Buyer and will cause each of its Affiliates (including, after the Closing, the Company Group) to waive and not assert, any conflict of interest relating to the Law Firm’s representation after the Closing of the Sellers or their Affiliates in any matter involving the transactions contemplated by this Agreement (including the First Closing Acquired Entities after the First Closing negotiation, preparation, execution and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one handdelivery of this Agreement and related agreements, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all consummation of the Sellers transactions contemplated hereby or thereby), including in any litigation, arbitration, mediation or other proceeding, and their Affiliates in (II) consents to, and will cause each of its Subsidiaries (including, after the Closing, the Company Group) to consent to, any such disputerepresentation, even though though, in each case, (x) the interests of the Sellers and their or such Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its Company Group or their respective Affiliates, on (y) the one handLaw Firm may have represented the Sellers, and the Sellers Company Group or their respective Affiliates in a substantially related matter, or (z) the Law Firm may be handling other ongoing matters for Buyer, the Company Group or any of their respective Affiliates.
(b) Buyer agrees that, on after the other handClosing, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counselnone of Buyer, the First Closing Acquired Entities Company Group or any of their Affiliates will have any right to access or control any of the Law Firm’s records or communications relating to or affecting the transactions contemplated by this Agreement (with respect to including the negotiation, preparation, execution and delivery of this Agreement and related agreements, and the consummation of the transactions contemplated hereby or thereby) (such records or communications prior to containing legal work product of the First ClosingLaw Firm, the “Attorney-Client Communications”), which will be the Second Closing Acquired Entities property of (with respect and be controlled by) the Sellers. In addition, Buyer agrees that it would be impractical to communications prior to remove all Attorney-Client Communications from the Second records (including e-mails and other electronic files) of the Company Group. Accordingly, Buyer will not, and will cause each of its Affiliates (including, after the Closing), the Company Group) not to, use any Attorney-Client Communication remaining in the records of the Company Group after the Closing in a manner that may be adverse to Sellers or any of their respective Affiliates.
(c) Buyer agrees, on its own behalf and on behalf of its Affiliates (including, after the Closing, the Company Group), that from and after the Closing (i) the attorney-client privilege, attorney work product protection all other evidentiary privileges, and the expectation of client confidence belongs solely as to all Attorney-Client Communications belong to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall will not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company Group or any of their respective Affiliates, and (ii) Seller Counsel may disclose the Sellers will have the exclusive right to control, assert or waive the attorney-client privilege, any other evidentiary privilege, and the expectation of client confidence with respect to such Attorney-Client Communications. Accordingly, Buyer will not, and will cause each of its Affiliates (including, after the Closing, the Company Group) not to, (x) assert any attorney-client privilege, other evidentiary privilege, or expectation of client confidence with respect to any Attorney-Client Communication, except in the event of a post-Closing dispute with a Person that is not the Sellers or any of their Affiliates; or (y) take any action which could cause any Attorney-Client Communication to cease being a confidential communication or to otherwise lose protection under the attorney-client privilege or any other evidentiary privilege, including waiving such protection in any dispute with a Person that is not the Sellers or any of their Affiliates. Furthermore, Buyer agrees, on its own behalf and on behalf of each of its Affiliates (including, after the Closing, the Company Group), that in the event of a dispute between the Sellers or any of their Affiliates, on the one hand, and any of the Company Group, on the other hand, arising out of or relating to any matter in which the Law Firm jointly represented both parties, neither the attorney-client privilege, the expectation of client confidence, nor any right to any other evidentiary privilege will protect from disclosure to the Sellers or their respective Affiliates any information learned by Seller Counsel in or documents developed or shared during the course of its the Law Firm’s joint representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing Company Group and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseSellers.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each of The Parties agree that, notwithstanding the Parties fact that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller CounselXxxxxx”) may have, prior to act as the Closing, jointly represented SPAC and Sponsor in connection with this Agreement, the Ancillary Documents and the Transactions, and has also represented SPAC, Sponsor and their respective Affiliates in connection with matters other than the Transactions, Xxxxxx will be permitted in the future, after the Closing, to represent Sponsor or its Affiliates in connection with matters in which such Persons are adverse to the Company, SPAC or any of their respective Affiliates, including any disputes arising out of, or related to, this Agreement. The Company, who is represented by independent counsel in connection with the Transactions, xxxxxx agrees, in advance, to waive (and to cause its Affiliates to waive) any actual or potential conflict of interest that Seller Counsel has not acted as counsel for any other Party may hereafter arise in connection with the Transactions, and that none Xxxxxx’x future representation of the other Parties has the status one or more of a client of Seller Counsel for conflict of interest Sponsor or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter its Affiliates in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, such Person are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though adverse to the interests of SPAC and the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities Company or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and of their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, Affiliates in connection with any future disputesmatters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by Xxxxxx of Sponsor, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers SPAC or any of their respective Affiliates. The Parties acknowledge and agree that, on for the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any purposes of their respective Affiliates, the attorney-client privilege, attorney work product protection Sponsor shall be deemed the client of Xxxxxx with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence belongs relating thereto shall belong solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Sponsor, and may shall be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Sponsor and shall not pass to or be claimed by BuyerSPAC; provided further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(b) The Parties agree that, notwithstanding the fact that Lucosky Xxxxxxxx LLP (“LB”) may have, prior to the Closing, represented the Company in connection with this Agreement, the First Closing Acquired Entities Ancillary Documents and the Transactions, and has also represented the Company and its Affiliates in connection with matters other than the Transaction, LB will be permitted in the future, after the First Closing, to represent the Second Closing Acquired Entities after the Second ClosingCompany or its Affiliates in connection with matters in which such Persons are adverse to Sponsor, SPAC, or any of their respective Affiliates, including any disputes arising out of, or related to, this Agreement. Sponsor and SPAC, who are represented by independent counsel in connection with the Transactions, hereby agree, in advance, to waive (iiand to cause their Affiliates to waive) Seller Counsel any actual or potential conflict of interest that may disclose hereafter arise in connection with LB’s future representation of one or more of the Company or its Affiliates in which the interests of such Person are adverse to the Sellers interests of Sponsor, SPAC or any of their respective Affiliates in connection with any information learned matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by Seller Counsel in LB of the course Company or any of its representation Affiliates. The Parties acknowledge and agree that, for the purposes of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protectionthe Company shall be deemed the client of LB with respect to the negotiation, execution and performance of Seller Counsel’s duty this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of confidentiality. Accordinglyclient confidence relating thereto shall belong solely to the Company, Buyer shall be controlled by the Company and its Affiliates shall not have access pass to or be claimed by SPAC or Sponsor; provided further, that nothing contained herein shall be deemed to be a waiver by SPAC, Sponsor or any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever of any applicable privileges or protections that can or may be asserted to reveal or disclose prevent disclosure of any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedthird party.
Appears in 1 contract
Samples: Business Combination Agreement (Athena Technology Acquisition Corp. II)
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company) acknowledges and agrees that Xxxxxx, Xxxx & Xxxxxxxx LLP (“Xxxxxx Xxxx”) has acted as counsel for the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with this Agreement and the Transactions (the “Acquisition Engagement”), and in connection with this Agreement and the Transactions, and that Seller Counsel Xxxxxx Xxxx has not acted as counsel for any other Party Person, including the Buyer.
(b) Only the Sellers, the Company and their respective Affiliates shall be considered clients of Xxxxxx Xxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Company) acknowledges and agrees that any disputeall confidential communications between the Sellers, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxxxx Xxxx, on the other hand, are adversein the course of the Acquisition Engagement, arises and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Sellers and its Affiliates (other than the Company), and not the Company, and shall not pass to or be claimed, held, or used by the Buyer or the Company upon or after the Applicable Closing between BuyerClosing. Accordingly, the First Buyer shall not have access to any such communications, or to the files of Xxxxxx Xxxx relating to the Acquisition Engagement, whether or not the Closing Acquired Entities occurs. Without limiting the generality of the foregoing, upon and after the First Closing or the Second Closing Acquired Entities after the Second Closing, on (i) to the one handextent that files of Xxxxxx Xxxx in respect of the Acquisition Engagement constitute property of the client, and only the Sellers and their respective AffiliatesAffiliates shall hold such property rights and (ii) Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Company or the Buyer by reason of any attorney-client relationship between Xxxxxx Xxxx and the Company or otherwise; provided, on that notwithstanding the foregoing, Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (other handthan representatives, Seller Counsel may represent any or all accountants and advisors of the Sellers and its Affiliates; provided that such representatives, accountants and advisors are instructed to maintain the confidence of such attorney-client communications). The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) irrevocably waives any right it may have to discover or obtain information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, work product protection or other expectation of confidentiality owed to the Sellers and/or its Affiliates. If and to the extent that, at any time subsequent to Closing, the Buyer or any of its Affiliates (including after the Closing, the Company) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the Company or its Affiliates and any Person representing them that occurred at any time prior to the Closing, 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).
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) acknowledges and agrees that Xxxxxx Xxxx has acted as counsel for the Sellers, the Company and their respective Affiliates for several years and that the Sellers reasonably anticipates that Xxxxxx Xxxx will continue to represent it and/or its Affiliates in such disputefuture matters. Accordingly, even though the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) expressly (i) consents to Xxxxxx Xxxx’x representation of the Sellers and/or its Affiliates and/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 Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective AffiliatesCompany, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between are adverse, including any other Persons, with respect matter relating to the Transactions, (i) as to all communications among Seller Counseland whether or not such matter is one in which Xxxxxx Xxxx may have previously advised the Sellers, the First Closing Acquired Entities Company or their respective Affiliates and (with respect to communications prior ii) consents to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely disclosure by Xxxxxx Xxxx to the Sellers or their its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel Xxxxxx Xxxx in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s or Xxxxxx Xxxx’x duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(cd) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, The Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing, the Company) further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Company or its Affiliates by Xxxxxx Xxxx in connection with this Agreement or the Transactions.
(e) From and after the Closing, the Company shall cease to have any attorney-client relationship with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is expressly engaged in writing by the Company to represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Second Closing Acquired Entities Sellers and/or any of its Affiliates or (ii) the Sellers and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxxxx Xxxx after the Second Closing)Closing shall not affect the foregoing provisions hereof. Furthermore, Xxxxxx Xxxx, in its sole discretion, shall be entitled permitted to waive such privilege only with withdraw from representing the consent of Company in order to represent or continue so representing the Sellers.
(f) The Sellers, not the Company and the Buyer consent to the arrangements in this Section 10.19 and waive any actual or potential conflict of interest that may be unreasonably withheld, conditioned or delayedinvolved in connection with any representation by Xxxxxx Xxxx permitted hereunder.
Appears in 1 contract
Samples: Transaction Agreement (Allegion PLC)
Legal Representation. (a) It is acknowledged by each Buyer and the Company acknowledge and agree that the documents and papers in the client files of Xxxxxxx, Xxxxxx & Xxxx, P.C. and any other law firm that may have represented the Company or any of the Parties that the First Closing Acquired EntitiesSellers (all such firms, collectively, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller CounselFirms”) that relate to act as this Agreement, any of the other Transaction Documents, and any of the transactions contemplated hereby or thereby (including the Privilege Assets) will, upon the Closing, be owned by Sellers, and will be held by the Firms for the benefit of Sellers. Such documents and papers in the Firms’ client files (including any Privilege Assets) will not be provided to Buyer or the Company or their counsel Affiliates or their successors or assigns following the Closing. The documents and papers in the Firms’ client files subject to this Section 8.19 will include (in addition to all Privilege Assets) all notes, memoranda, and correspondence between the Firms, Sellers, the Company and its officers, directors, and other agents regarding this Agreement, any of the other Transaction Documents, and any of the transactions contemplated hereby or thereby, and all attorney work-product in connection with the Transactionsthis Agreement, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has Transaction Documents, and any of the status transactions contemplated hereby or thereby, but will exclude any documents not related to this Agreement, any of the other Transaction Documents, or any of the transactions contemplated hereby or thereby, including, without limitation, corporate and stock records that customarily are kept in a minute book, which documents will belong to the Company. In furtherance and not in limitation of the foregoing, upon and after the Closing, the Company shall cease to have any attorney-client of Seller Counsel for relationship with each Firm, unless and until such Firm is specifically engaged in writing by the Company to represent the Company after the Closing and either such engagement involves no conflict of interest with respect to any Seller or any other purposes as a result thereofsuch Seller consents in writing to such engagement. The Sellers and Buyer parties hereto hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective AffiliatesPrivilege Assets, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may shall be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after Company) without the First Closing and Sellers’ Representative’s prior written consent (which may be given or withheld in the Second Closing Acquired Entities after Sellers’ Representative’s sole discretion). Following the Second Closing) , without the Sellers’ Representative’s 58 prior written consent (which may be given or withheld in the Sellers’ Representative’s sole discretion), Buyer shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliatesnot, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and shall cause its Affiliates (including the First Closing Acquired Entities after Company) and any Person acting on behalf of or through Buyer or any of its Affiliates (including the First Closing Company) not to, access or use the Privilege Assets or assert that the Privilege Assets or associated attorney-client privilege or other evidentiary privilege belonging to either the Company or Buyer or any other Person other than Sellers (irrespective of whether any such Privilege Assets are located in the records or any of the information technology assets (including email servers) of the Company); provided, that the Sellers’ Representative shall not unreasonably withhold, condition or delay his consent if any such Person is seeking to use such Privilege Assets in defense or prosecution of a claim brought by or against another Person that is not a Seller or any of such Seller’s Affiliates. Notwithstanding the foregoing, nothing in this Section 8.19 shall prevent Buyer, any of its Affiliates (including the Company) or any Person acting on behalf of or through any of them from complying with applicable laws. Each of the parties to this Agreement hereby agrees that Xxxxxxx, Xxxxxx & Xxxx, P.C. may serve as counsel to Sellers in connection with the negotiation, preparation, execution, and delivery of this Agreement and any of the other Transaction Documents and the Second Closing Acquired Entities after consummation of any of the Second transactions contemplated hereby or thereby, and that following the Closing, Xxxxxxx, Xxxxxx & Xxxx, P.C. may serve as counsel to any Seller or any director, manager, member, partner, owner, officer, employee, or Affiliate thereof in connection with any claim, dispute or other matter arising out of or relating to this Agreement or the transactions contemplated by this Agreement, any of the other Transaction Documents, or any of the transactions contemplated hereby or thereby (including in connection with any matters contemplated by Article 5 or Article 6 hereof), shall be entitled to waive notwithstanding such privilege only with representation (or any continued representation) of any Seller, the consent Company or any of their Affiliates, and each of the Sellersparties hereto hereby waives any conflict of interest arising therefrom or in connection therewith. Notwithstanding anything in this Agreement to the contrary, not to be unreasonably withheld, conditioned or delayedthe Firms are expressly intended as third-party beneficiaries of this Section 8.19.
Appears in 1 contract
Samples: Stock Purchase Agreement (Knight-Swift Transportation Holdings Inc.)
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company) acknowledges and agrees that Xxxx Xxxxxx LLP (“Xxxx Xxxxxx”), Xxxxxxx Xxxxx Xxxxxx LLP (“Xxxxxxx Xxxxx”) and Xxxxxx Xxxx have acted as counsel for the Seller and/or for the Company in connection with this Agreement, the Ancillary Agreements and the Sellers have retained Xxxxxx & Xxxxxxx LLP transactions contemplated hereby and thereby (collectivelythe “Acquisition Engagement”), “Seller Counsel”) to act as their counsel and in connection with the TransactionsAcquisition Engagement, Xxxx Xxxxxx, Xxxxxxx Xxxxx and that Seller Counsel has Xxxxxx Xxxx have not acted as counsel for any other Party Person, including the Buyer.
(b) Only the Seller, the Company and their respective Affiliates shall be considered clients of Xxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including, in after the event Closing, the Company) acknowledges and agrees that any disputeall confidential communications between the Seller, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxx Xxxxxx, Xxxxxxx Xxxxx and/or Xxxxxx Xxxx, on the other hand, are adverse, arises after in the Applicable Closing between Buyer, course of the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one handAcquisition Engagement, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attendant attorney-client privilege, attorney work product protection and the expectation of client confidence belongs confidentiality applicable thereto, shall be deemed to belong solely to the Sellers or their Seller and its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany), and may be controlled by not the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Company, and shall not pass to or be claimed claimed, held or used by Buyerthe Buyer or the Company (or, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities Company) upon or after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, the Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller CounselXxxx Xxxxxx, Xxxxxxx Xxxxx and/or Xxxxxx Xxxx relating to the Acquisition Engagement, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ai) to the extent that files of Seller Counsel Xxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxx in respect of the Acquisition Engagement constitute property of the client, only the Sellers Seller and their respective its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (Bii) Seller Counsel Xxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Company or the Second Closing Acquired Entities Buyer by reason of any attorney-client relationship between Seller Counsel Xxxx Xxxxxx, Xxxxxxx Xxxxx or 55 Xxxxxx Xxxx and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or otherwise.
; provided, however, that notwithstanding the foregoing, Xxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (cother than Representatives of the Seller and its Affiliates; provided that such Representatives are instructed to maintain the confidence of such attorney-client communications). The Buyer, on behalf of itself and its Affiliates (including, after the Closing, the Company) irrevocably waives any right it may have to discover or obtain information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, work product protection or other expectation of confidentiality owed to the Seller and/or its Affiliates. If and to the extentextent that, at any time subsequent to each Applicable the Closing, the Buyer or any of its Affiliates (including the First Closing Acquired Entities including, after the First Closing and Closing, the Second Closing Acquired Entities after the Second ClosingCompany) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, Acquisition Engagement and any Person representing themmatters that are the subject of an Indemnification Agreement, that occurred at any time prior to such Applicable Closing, the Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities including, after the First Closing and Closing, the Second Closing Acquired Entities after the Second Closing), Company) shall be entitled to waive such privilege only with the prior written consent of the Sellers, Seller (such consent not to be unreasonably withheld).
(c) The Buyer, conditioned on behalf of itself and its Affiliates (including, after the Closing, the Company) acknowledges and agrees that Xxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxx have acted as counsel for the Seller, the Company and certain of their respective Affiliates for several years and that the Seller reasonably anticipates that Xxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxx will continue to represent the Seller and/or its Affiliates (other than, after the Closing, the Company) in future matters, related to the Acquisition Engagement, the Indemnification Agreements and other matters unrelated to the Company. Accordingly, the Buyer, on behalf of itself and its Affiliates (including, after the Closing, the Company) expressly (i) consents to Xxxx Xxxxxx’x, Xxxxxxx Xxxxx’x and Xxxxxx Xxxx’x representation of the Seller and/or its Affiliates and/or any of their respective agents (if any of the foregoing Persons so desire) in any matter relating to the Acquisition Engagement, including any post-Closing matter relating to the Acquisition Engagement in which the interests of the Buyer and the Company, on the one hand, and the Seller or delayedany of its Affiliates, on the other hand, are adverse, and whether or not such matter is one in which Xxxx Xxxxxx, Xxxxxxx Xxxxx and/or Xxxxxx Xxxx may have previously advised the Seller, the Company or any of their respective Affiliates and (ii) consents to the disclosure by Xxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxx to the Seller or its Affiliates of any information learned by Xxxx Xxxxxx, Xxxxxxx Xxxxx and/or Xxxxxx Xxxx in the course of their representation of the Seller, the Company or any of their respective Affiliates with respect to the Acquisition Engagement, whether or not such information is subject to attorney-client privilege, attorney work product protection or Xxxx Xxxxxx’x, Xxxxxxx Xxxxx’x and/or Xxxxxx Xxxx’x duty of confidentiality.
(d) From and after the Closing, except as set forth in the Indemnification Agreements, the Company shall cease to have any attorney-client relationship with Xxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxx, unless and to the extent Xxxx Xxxxxx, Xxxxxxx Xxxxx and/or Xxxxxx Xxxx are expressly engaged in writing by the Company to represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Seller and/or any of its Affiliates or (ii) the Seller and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxx Xxxxxx, Xxxxxxx Xxxxx or Xxxxxx Xxxx after the Closing shall not affect the foregoing provisions hereof.
(e) Each of the parties to this Agreement consents to the arrangements in this Section 11.19 and waives any actual or potential conflict of interest that may be involved in connection with any representation by Xxxx Xxxxxx, Xxxxxxx Xxxxx or Xxxxxx Xxxx permitted hereunder with respect to the Acquisition Engagement and the Indemnification Agreements.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Williams Partners L.P.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities(i) Seller Parent, the Second Closing Acquired Entities Sellers and the Sellers Company Entities have retained Xxxxxx Lxxxxx & Xxxxxxx Wxxxxxx LLP (collectively, “Seller Sellers’ Counsel”) to act as their counsel in connection with the Transactionstransactions contemplated hereby, and that Seller (ii) Sellers’ Counsel has not acted as counsel for any other Party in connection with the Transactions, transactions contemplated hereby and that (iii) none of the other Parties has the status of a client of Seller Sellers’ Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer Parties hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and Seller Parent, any Seller or any of their respective Affiliates, on the one hand, and Buyer and or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), on the other hand, are adverse, arises after the Applicable Closing between Buyer, Buyer or any of the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingCompany Entities, on the one hand, and the Sellers and any of Seller Parent, any Seller or any of their respective Affiliates, on the other hand, Seller with respect to this Agreement or any other Transaction Documents or the transactions contemplated hereby or thereby, Sellers’ Counsel may represent Seller Parent, any Seller or all any of the Sellers and their Affiliates in such dispute, dispute even though the interests of the Sellers and Seller Parent, such Seller or their Affiliates may be directly adverse to Buyer, Buyer or any of the First Closing Acquired Entities or the Second Closing Acquired Company Entities, and even though Seller Sellers’ Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired such Company Entities in any matter substantially related to such dispute.
(b) The Each of Sellers and Buyer acknowledges and their respective Affiliatesagrees on its own behalf and on behalf of its Affiliates (including, including with respect to in the First Closing Acquired case of Buyer, the Company Entities and after the Second Closing Acquired Entities, acknowledge and agree Closing) that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Buyer or any of its or their respective Affiliates, on the one hand, and the Sellers Seller Parent, any Seller or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactionstransactions contemplated by this Agreement or otherwise, (i) as to all communications among Seller Sellers’ Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing)Seller Parent, the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers any Seller or any of their respective AffiliatesAffiliates (including the Company Entities prior to the Closing) with respect to this Agreement or any other Transaction Documents or the transactions contemplated hereby or thereby,, the attorney-client privilege, attorney work work-product protection and the expectation of client confidence belongs solely to the Sellers Seller Parent, such Seller or its or their Affiliates applicable Affiliate (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closingany Company Entity), and may be controlled by the Sellers Seller Parent, such Seller or its or their Affiliates applicable Affiliate (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), and shall not pass to or be claimed by Buyer, Buyer or any of its Affiliates (including the First Closing Acquired Company Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, ) with respect to this Agreement or any of their respective Affiliatesother Transaction Documents or the transactions contemplated hereby or thereby, and (ii) Seller Sellers’ Counsel may disclose to the Sellers Seller Parent, any Seller or any of their respective Affiliates any information learned by Seller Sellers’ Counsel in the course of its representation of Seller Parent, any Seller or any of their Affiliates (including the Sellers, Company Entities prior to the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective AffiliatesClosing), whether or not such information is subject to attorney-client privilege, attorney work work-product protection, of Seller Sellers’ Counsel’s duty of confidentiality. AccordinglyExcept as otherwise provided herein (including pursuant to Section 6.2 or Section 6.8), Buyer and its Affiliates (including the Company Entities after the Closing) shall not have access to any such communications, or to the files of Seller Sellers’ Counsel, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (A) to the extent that files with respect to this Agreement or any other Transaction Documents or the transactions contemplated hereby or thereby, of Seller Sellers’ Counsel constitute property of the client, only the Seller Parent, Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (B) Seller Sellers’ Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files with respect to Buyer, the First Closing Acquired Entities this Agreement or any other Transaction Documents or the Second Closing Acquired transactions contemplated hereby or thereby, to Buyer or its Affiliates (including the Company Entities after the Closing) by reason of any attorney-client relationship between Seller Sellers’ Counsel and the First Closing Acquired Company Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer or any of or its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closingthe Closing between the Company Entities or their Affiliates and any Person representing them, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Entities), shall be entitled to waive such privilege only with the consent of the Seller Parent and Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each Each of the Parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Company is a client of Xxxxxxx Coie LLP (collectively“Firm”). After the Closing, “Seller Counsel”) to act as their counsel it is possible that Firm will represent the Equityholders and/or the Representative on behalf of the Equityholders in connection with the Transactionstransactions contemplated herein or in connection with any claims for indemnification against the Equityholders. Buyer, the Surviving Corporation, and the Company hereby agree that the Firm (or any successor) may represent the Equityholders in the future in connection with issues that may arise under this Agreement and any claims that may be made pursuant to this Agreement, including a dispute that arises after the Closing between Buyer (and/or the Company) and any Equityholder, even though the interests of such Equityholder may be directly adverse to Buyer or the Company, or even though Firm may be handling ongoing matters for the Company. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that Seller Counsel has not acted as the parties have consulted with counsel for or have been advised they should do so in this connection.
(b) Notwithstanding anything to the contrary contained herein, the parties intend that all communications at or prior to the Closing between the Company or any Equityholder (the “Target Group”), on the one hand, and any of their attorneys, on the other Party hand, exclusively in connection with the Transactionsnegotiation and documentation of this Agreement and the agreements entered into in connection with the Merger, the transactions contemplated hereunder and thereunder (collectively, the “Protected Communication”), and that none of will not be disclosed by Firm to Buyer or the Company (following Closing) in any action between Buyer or the Company (following the Closing), on one hand, and the Representative or the Equityholders, on the other Parties has hand; provided, however, that (a) the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers Equityholders may choose to waive the privilege in their sole discretion and Buyer hereby agree that, (b) in the event that of any disputedispute between Buyer, the Company (following the Closing) or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates a third party (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closingother than a party to this Agreement), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of Company and its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, affiliates may assert the attorney-client privilege, attorney work product protection and the expectation privilege to prevent disclosure of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled confidential communications by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Firm or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior Equityholder to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedthird party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Livongo Health, Inc.)
Legal Representation. (a) It is acknowledged by each Each of the Parties that the First Closing Acquired EntitiesParent, the Second Closing Acquired Entities Parent, Merger Sub and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectivelyCompany hereby waives, “Seller Counsel”) and agrees to act as their counsel cause its controlled Affiliates to waive, any conflicts that may arise in connection with Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP (“Orrick”) representing the TransactionsRepresentative, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has Seller Indemnitors or their respective Affiliates after the status Closing as such representation arising from the transactions contemplated by this Agreement and the Ancillary Agreements. Each of a client Parent, Merger Sub and the Company (on behalf of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers itself and Buyer its Affiliates) hereby agree agrees that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, a dispute arises after the Applicable Closing between Buyer, from the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, transactions contemplated by this Agreement and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute Ancillary Agreements between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Parent or any of its or their respective Affiliates, on the one hand, and the Sellers or Representative and/or any of their respective AffiliatesSeller Indemnitors, on the other hand, Orrick may represent any or with or between any other Persons, with respect to all of the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection Representative and the expectation Seller Indemnitors in such dispute even though the interests of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Representative and the Second Closing Acquired Entities after the Second Closing), and Seller Indemnitors may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass directly adverse to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Parent or any of their respective Affiliates, and (ii) Seller Counsel even though Orrick formerly may disclose have represented the Company. Parent further agree that, as to all communications involving attorney-client confidences by the Company, the Representative and/or the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of, and to the extent relating to, the negotiation, documentation and consummation of the Sellerstransactions contemplated by this Agreement (collectively, the First Closing Acquired Entities“Privileged Communications”), the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilegeprivilege and the expectation of client confidence with respect to the Privileged Communications belongs solely to the Sellers and may be controlled by the Sellers and will not pass to or be claimed by Parent or any of their respective Affiliates (including, attorney work product protectionfollowing the Closing, of Seller Counsel’s duty of confidentialitythe Company and its Subsidiaries). Accordingly, Buyer the Company and its Affiliates shall not have access to any such communicationsPrivileged Communications, or to the files of Seller CounselOrrick relating to the engagement described in this Section, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rightshave occurred, and (B) Seller Counsel Orrick shall have no duty whatsoever to reveal or disclose any such attorney-client communications Privileged Communications or files to Buyer, any of the First Closing Acquired Entities or the Second Closing Acquired Entities Company and its Affiliates by reason of any attorney-client relationship between Seller Counsel Orrick and any of the First Closing Acquired Entities Company and its Affiliates. The Privileged Communications are the Second Closing Acquired Entities property of the Sellers and, from and after the Closing, none of Parent, their respective Affiliates (as applicableincluding, following the Closing, the Company and its Affiliates) or otherwise.
(c) If and any Person purporting to act on behalf of or through Parent or such Affiliates will seek to obtain the Privileged Communications, whether by seeking a waiver of the attorney-client privilege or through other means. The Privileged Communications may be used by the Sellers or any of their respective Affiliates in connection with any dispute that relates to the extenttransactions contemplated by or in connection with this Agreement, at including in any time subsequent claim for indemnification against the Seller Indemnitors under this Agreement. Notwithstanding the foregoing, in the event that a dispute arises between Parent or any of their respective Affiliates and a third party (other than a party to each Applicable Closingthis Agreement, Buyer or any of its Affiliates (including the First Closing Acquired Entities or any Seller Indemnitor) after the First Closing and Closing, Parent and/or their respective Affiliates may assert the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities prevent disclosure of confidential communications by counsel to such third party, provided, that none of Parent and the Second Closing Acquired Entities (as applicable) or their respective AffiliatesAffiliates (including, and any Person representing them, that occurred at any time prior to such Applicable following the Closing, Buyer, on behalf of itself the Company and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Affiliates) may waive such privilege only with without the prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedRepresentative.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by Buyer and the Company hereby agree, on their own behalf, and each of their directors, members, partners, officers and employees, and each of their successors and assigns (all such parties, the “Waiving Parties”), that Xxxxxxxx & Xxxx LLP (or a successor) shall not be prohibited from representing the Seller or any of its members or Affiliates, and each of their and their Affiliates’ directors, members, partners, officers, employee or Affiliates in connection with any dispute, legal action or obligation arising out of or relating to this Agreement or the other Transaction Documents (any such representation, the “Post-closing Representation”) as a result of its prior representation of the Seller, the Company or any of its Subsidiaries, and each of Buyer and the Company Group on behalf of itself and the Waiving Parties hereby agrees not to assert any conflict of interest therefrom. Buyer and the Company acknowledge that the First foregoing provision applies whether or not Xxxxxxxx & Xxxx LLP provides legal services to the Seller, and of its members, or the Company or any of its Subsidiaries after the Closing Acquired EntitiesDate. From and after the Closing neither Buyer, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectivelyCompany, “Seller Counsel”) nor any Person purporting to act as their counsel on behalf of or through Buyer or the Company or any of the Waiving Parties, will seek to obtain any privileged communications among the Company Group or the Seller and Xxxxxxxx & Xxxx LLP, made in connection with the Transactionsnegotiation, preparation, execution, delivery and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any disputeperformance under, or any dispute or legal action arising out of or relating to, this Agreement, the other matter in which Transaction Documents or the interests transactions contemplated hereby or thereby. Each of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates the Company (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, behalf of itself and the Sellers and their respective AffiliatesWaiving Parties, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall will not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities Xxxxxxxx & Xxxx LLP and the Second Closing Acquired Entities (as applicable) Company, its Subsidiaries or their respective Affiliates, and the Seller or any Person representing them, that occurred at any time member of the Seller occurring prior to such Applicable Closingthe Closing in connection with this Agreement, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent any other Transaction Document or any of the Sellers, not to be unreasonably withheld, conditioned transactions contemplated herein or delayedtherein in any Post-Closing Representation.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each Each of the Parties parties to this Agreement acknowledges and agrees that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxx Xxxx Xxxxxxxx Xxxxxxx LLP (collectively, “Seller CounselBCLP”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not may have acted as counsel for any other Party certain of the Contributors, the Contributors Representative, the Company and/or their respective Affiliates in connection with this Agreement and the Transactions, and that none Transactions (the “Acquisition Engagement”).
(b) Each of the other Parties has parties to this Agreement acknowledges and agrees that all confidential communications between the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree thatContributors, in the event that any disputeContributors Representative, or any other matter in which the interests of Sellers and Company and/or their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)BCLP, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the SellersAcquisition Engagement, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to and any attendant attorney-client privilege, attorney work product protection, and expectation of Seller Counsel’s duty of confidentialityclient confidentiality applicable thereto, shall be deemed to belong solely to the Contributors and their Affiliates (other than the Company), and not the Company, and shall not pass to or be claimed, held, or used by Acquiror, Acquiror Intermediate Holdco, Acquiror Topco or the Company upon or after the Closing. Accordingly, Buyer none of Acquiror, Acquiror Intermediate Holdco and its Affiliates Acquiror Topco shall not have access to any such communications, or to the files of Seller CounselBCLP relating to the Acquisition Engagement, whether or not any Applicable the Closing occurs, and the Company shall not have any such access upon or after the Closing. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ax) to the extent that files of Seller Counsel BCLP in respect of the Acquisition Engagement constitute property of the client, only the Sellers Contributors and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany) shall hold such property rights, and (By) Seller Counsel BCLP shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyerthe Company or Acquiror, the First Closing Acquired Entities Acquiror Intermediate Holdco or the Second Closing Acquired Entities Acquiror Topco by reason of any attorney-client relationship between Seller Counsel BCLP and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or otherwise.
(c) . Acquiror, Acquiror Intermediate Holdco and Acquiror Topco irrevocably waive any right it may have to discover or obtain information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, work product protection or other expectation of confidentiality owed by BCLP to the Contributors, the Contributors Representative, the Company and/or their respective Affiliates. If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer Acquiror, Acquiror Intermediate Holdco or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) Acquiror Topco shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or their respective Affiliates, Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, BuyerAcquiror, on behalf of itself Acquiror Intermediate Holdco and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Acquiror Topco shall be entitled to waive such privilege only with the prior written consent of the Sellers, Contributors Representative (such consent not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Samples: Contribution Agreement (Cybin Inc.)
Legal Representation. (a) It is acknowledged by each Recognizing that Xxxxxxxx & Xxxxx LLP (the “Legal Representative”) has acted as legal counsel to the Company, its Subsidiaries, the Seller Entities and certain of their Affiliates prior to the Closing, Buyer hereby waives, on its own behalf, and on behalf of the Parties Company and its Subsidiaries effective as of the Closing, and agrees to cause its Affiliates to waive, any conflicts that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel may arise in connection with the Transactions, and that Legal Representative representing the Seller Counsel has not acted as counsel for any other Party Entities and/or their Affiliates after the Closing in connection with the Transactions, and that none Seller Entities and/or their Affiliates asserting or enforcing its or their rights under this Agreement or making or defending any claim arising out of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing this Agreement or the Second Closing Acquired Entities after the Second Closingtransactions contemplated by this Agreement. In addition, on the one handall communications involving attorney-client confidences between Holdco, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective AffiliatesSubsidiaries, on the one hand, and the Sellers any Interestholder or any of their respective Affiliates, on Affiliates and either the other hand, Legal Representative or with Xxxxx X. Xxxxxxxx (or between any other Persons, with respect to both the Transactions, (iLegal Representative and Xxxxx X. Xxxxxxxx) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation the negotiation, documentation and consummation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject transactions contemplated hereby and preparations relating thereto shall be deemed to be attorney-client privilege, attorney work product protection, of confidences that belong solely to the Seller Counsel’s duty of confidentialityEntities and their Affiliates other than the Company and its Subsidiaries. Accordingly, Buyer and its Affiliates Affiliates, including the Company and its Subsidiaries after the Closing, shall not have access to any such communications, or to the files of Seller Counselthe Legal Representative or Xxxxx X. Xxxxxxxx relating to any such representation, whether or not any Applicable the Closing occursshall have occurred. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ai) the Seller Entities and their Affiliates (and not the Company and its Subsidiaries) shall be the sole holders of, and have the sole right to waive, the attorney-client privilege with respect to any such representation, and none of Buyer and its Affiliates, including the Company and its Subsidiaries, shall be a holder of or have the right to waive such privilege, (ii) to the extent that files of Seller Counsel the Legal Representative or Xxxxx X. Xxxxxxxx in respect of such representation constitute property of the client, only the Sellers Seller Entities and their respective Affiliates (other than and not the First Closing Acquired Entities after the First Closing Company and the Second Closing Acquired Entities after the Second Closingits Subsidiaries) shall hold such property rights, rights and (Biii) Seller Counsel the Legal Representative and Xxxxx X. Xxxxxxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Company or the Second Closing Acquired Entities any of its Subsidiaries by reason of any attorney-client relationship between Seller Counsel the Legal Representative or Xxxxx X. Xxxxxxxx and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or any of its Subsidiaries or otherwise.
(cb) If The Seller Entities and Interestholders hereby acknowledge and agree, that, after the Closing, Xxxxx X. Xxxxxxxx may represent the Company in connection with any matters not related to this Agreement or the transactions contemplated by this Agreement. The parties hereto agree that Xxxxx X. Xxxxxxxx shall not represent any of the parties hereto in connection with any such party asserting or enforcing its rights under this Agreement or making or defending any claim arising out of this Agreement or the transactions contemplated by this Agreement; it being understood that (i) Xxxxx X. Xxxxxxxx may represent a party controlling the defense of a Third Party Claim under Section 11.04(a) and/or the Indemnified Person against whom such claim was made, against such third party, and (ii) any party may discuss with Xxxxx X. Xxxxxxxx factual matters underlying a dispute under this Agreement, subject to his obligations as counsel to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities Company after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf provisions of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingSection 7.17(a), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Legal Representation. 31.1 The Buyer, on behalf of itself and its Affiliates (aincluding, after Closing, the Transferred Companies) It is acknowledged by each of the Parties acknowledges and agrees that the First Closing Acquired Entities, Seller’s Solicitors have acted as counsel for the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with this Agreement and the TransactionsProposed Transaction (the “Acquisition Engagement”), and that Seller Counsel has in connection with this Agreement and the Proposed Transaction, the Seller’s Solicitors have not acted as counsel for any other Party in connection with Person, including the Transactions, Buyer.
31.2 Only the Seller and that none its Affiliates shall be considered clients of the other Parties has Seller’s Solicitors in the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after Closing, in the event Transferred Companies), acknowledges and agrees that any dispute, or any other matter in which all confidential communications between the interests of Sellers Seller and their respective its Affiliates, on the one hand, and the Seller’s Solicitors, on the other hand, in the course of the Acquisition Engagement, and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Seller and its Affiliates (other than the Transferred Companies), and not the Transferred Companies, and shall not pass to or be claimed, held, or used by the Buyer or the Transferred Companies upon or after Closing. Accordingly, the Buyer shall not have access to any such communications, or to the files of the Seller’s Solicitors relating to the Acquisition Engagement, whether or not Closing occurs.
31.3 Without limiting the generality of Clause 31.2, upon and after Closing, (i) to the extent that files of the Seller’s Solicitors in respect of the Acquisition Engagement constitute property of the client, only the Seller and its Affiliates shall hold such property rights and (ii) the Seller’s Solicitors shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Transferred Companies or the Buyer by reason of any attorney-client relationship between the Seller’s Solicitors and the Transferred Companies or otherwise; provided, however, that notwithstanding the foregoing, the Seller’s Solicitors shall not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisers of the Seller and its Affiliates; provided that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications).
31.4 The Buyer, on behalf of itself and its Affiliates (including after Closing, the First Transferred Companies) irrevocably waives any right it may have to discover or obtain information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, work product protection or other expectation of confidentiality owed to the Seller and/or its Affiliates. If and to the extent that, at any time subsequent to Closing, the Buyer or any of its Affiliates (including after Closing, the Transferred Companies) shall have the right to assert or waive any attorney-client privilege with respect to any communication between any Transferred Company or its respective Affiliates and any Person representing it that occurred at any time prior to Closing, the Buyer, on behalf of itself and its Affiliates (including after Closing, the Transferred Companies) shall be entitled to waive such privilege only with the prior written consent of the Seller (such consent not to be unreasonably withheld).
31.5 The Buyer, on behalf of itself and its Affiliates (including, after Closing, the Transferred Companies) acknowledges and agrees that the Seller’s Solicitors have acted as counsel for the Seller and its Affiliates for several years and that the Seller reasonably anticipates that the Seller’s Solicitors will continue to represent it and/or its Affiliates in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after Closing, the Transferred Companies) expressly (i) consents to the Seller’s Solicitors’ representation of the Seller and/or its Affiliates and/or any of their respective agents (if any of the foregoing Persons so desire) in any matter, including, without limitation, any post-Closing Acquired Entities after matter in which the First Closing interests of the Buyer and the Second Closing Acquired Entities after Transferred Companies, on the Second Closing)one hand, and the Seller or any of its Affiliates, on the other hand, are adverse, arises after including any matter relating to the Applicable Closing between BuyerProposed Transaction, and whether or not such matter is one in which the Seller’s Solicitors may have previously advised the Seller, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its Transferred Companies or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose consents to the Sellers disclosure by the Seller’s Solicitors to the Seller or their respective its Affiliates of any information learned by Seller Counsel the Seller’s Solicitors in the course of its representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Entities Transferred Companies or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counselor the Seller’s Solicitors’ duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, 31.6 The Buyer, on behalf of itself and its Affiliates (including including, after Closing, the First Closing Acquired Entities Transferred Companies) further covenants and agrees that each shall not assert any claim against the Seller’s Solicitors in respect of legal services provided to the Transferred Companies or their respective Affiliates by the Seller’s Solicitors in connection with this Agreement or the Proposed Transaction.
31.7 From and after Closing, the First Transferred Companies shall cease to have any attorney-client relationship with the Seller’s Solicitors, unless and to the extent the Seller’s Solicitors are expressly engaged in writing by any Transferred Company to represent such Transferred Company after Closing and either (i) such engagement involves no conflict of interest with respect to the Second Seller and/or any of its Affiliates or (ii) the Seller and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of a Transferred Company by the Seller’s Solicitors after Closing Acquired Entities after shall not affect the Second Closing)foregoing provisions of this Clause 31. Furthermore, the Seller’s Solicitors, in their sole discretion, shall be entitled permitted to withdraw from representing any Transferred Company in order to represent or continue so representing the Seller.
31.8 The Seller and the Buyer consent to the arrangements in this Clause 31 and waive such privilege only any actual or potential conflict of interest that may be involved in connection with any representation by the consent Seller’s Solicitors permitted hereunder.
31.9 For purposes of this Clause 31, “Seller’s Solicitors” means Xxxxxx, Xxxx & Xxxxxxxx LLP, Xxxxx, Xxxxx & Giuditta, P.C., Xxxxx Xxxx LLP and Xxxxxxx & Xxxxxx LLP. AS WITNESS whereof, this Agreement has been executed on the Sellersdate first above written. Company name (company number) Playdemic Limited (07106742) Jurisdiction of incorporation England and Wales Date of incorporation 16 December 2009 Issued share capital 5,984 ordinary shares with nominal value of £1.00 each Shareholder WB/TT Holdings Limited (5,984 ordinary shares with nominal value of £1.00 each) Persons with significant control WB/TT Holdings Limited Directors Xxxxx Xxxxxxxxx Xxxxxxx-Xxxxx Xxxx Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxx Xxxx Xxxxxxx Secretary None. Registered office Warner House, not to be unreasonably withheld00 Xxxxxxxxx Xxxx, conditioned or delayedXxxxxx, Xxxxxxx, XX0X 0XX Auditors Ernst & Young LLP Accounting reference date 31 December Registered charges None.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree Parent agrees that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications between and among Seller Counselall counsel for Seller, the First Closing Acquired Entities Company and/or their respective Affiliates (with respect to communications prior including, without limitation, Xxxxxx Xxxxxxxx LLP), and Seller, the Company and/or their respective Affiliates that relate in any way to the First Closing)transactions contemplated by or in connection with this Agreement (collectively, the Second Closing Acquired Entities (with respect to communications prior to the Second Closing“Privileged Communications”), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely with respect to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Privileged Communications belongs to Seller and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Seller Group and the Second Closing Acquired Entities after the Second Closing), and shall will not pass to or be claimed by BuyerParent or any of its respective Affiliates (including, following the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities Company). The Privileged Communications are the property of Seller, and from and after the Second Closing none of Parent, its Affiliates (including, following the Closing, the Company), or any Person purporting to act on behalf of or through Parent or such Affiliates will seek to obtain such Privileged Communications, whether by seeking a waiver of the attorney-client privilege or through other means. Parent, and its Affiliates (including, following the Closing, the Company), together with any of their respective Affiliates, successors or assigns further agree that no such party may use or rely on any of the Privileged Communications in any action against or involving Seller or any of his Affiliates after the Closing. The Privileged Communications may be used by Seller and/or any of his Affiliates in connection with any dispute that relates to the transactions contemplated by or in connection with this Agreement, including in any claim for indemnification brought by Parent or any other Indemnified Party. Notwithstanding the foregoing, in the event that a dispute arises between Parent or any of its Affiliates and a third party (other than a party to this Agreement or any of their respective Affiliates) after the Closing, Parent and its Affiliates may assert the attorney-client privilege to prevent disclosure of confidential communications by counsel to such third party, provided that neither Parent nor its Affiliates (including, following the Closing, the Company) may waive such privilege without the prior written consent of Seller. Parent, for itself and its Affiliates, (i) hereby confirms that no engagement that Xxxxxx Xxxxxxxx LLP has undertaken or may undertake on behalf of Seller will be asserted by Parent or any of its Affiliates either as a conflict of interest with respect to, or as a basis to preclude, challenge or otherwise disqualify Xxxxxx Xxxxxxxx LLP from, any current or future representation of Seller, and (ii) Seller Counsel may disclose hereby waives any conflict of interest that exists on or prior to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communicationsClosing, or that might be asserted to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities exist after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing themother basis that might be asserted to preclude, that occurred at challenge or otherwise disqualify Xxxxxx Xxxxxxxx LLP in any time prior to such Applicable Closing, Buyer, on behalf continuing or post-Closing representation of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSeller.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (TrueCar, Inc.)
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company) acknowledges and agrees that Xxxxxx, Xxxx & Xxxxxxxx LLP (“Xxxxxx Xxxx”) has acted as counsel for the Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxxxx Xxxx has not acted as counsel for any other Party Person, including the Buyer.
(b) Only the Seller, the Company and their respective Affiliates shall be considered clients of Xxxxxx Xxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Company) acknowledges and agrees that any disputeall confidential communications between the Seller, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxxxx Xxxx, on the other hand, are adverse, arises after solely in the Applicable Closing between Buyer, course of the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one handAcquisition Engagement, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attendant attorney-client privilege, attorney work product protection and the expectation duty of client confidence belongs confidentiality applicable thereto, shall be deemed to belong solely to the Sellers or their Seller and its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany), and may be controlled by not the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Company, and shall not pass to or be claimed claimed, held, or used by the Buyer or the Company upon or after the Closing. Accordingly, the Buyer shall not have access to any such communications, or to the files of Xxxxxx Xxxx relating to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of Xxxxxx Xxxx in respect of the Acquisition Engagement constitute property of the client, only the Seller and its Affiliates shall hold such property rights and (ii) Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Company or the Buyer by reason of any attorney-client relationship between Xxxxxx Xxxx and the Company or otherwise; provided, however, that notwithstanding the foregoing, Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisors of the Seller and its Affiliates; provided that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications). The Buyer, the First Closing Acquired Entities on behalf of itself and its Affiliates (including after the First Closing, the Second Closing Acquired Entities after Company) irrevocably waives any right it may have to discover or obtain information or documentation relating to the Second Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, work product protection or duty of confidentiality owed to the Seller and/or its Affiliates. If and to the extent that, at any time subsequent to Closing, the Buyer or any of their respective Affiliatesits Affiliates (including after the Closing, the Company) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the Company or its Affiliates and Xxxxxx Xxxx that occurred at any time prior to the Closing, 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 Seller (such consent not to be unreasonably withheld). The foregoing notwithstanding, (i) Buyer shall have the right to receive final executed copies of all documents effecting the Construction Services Separation and (ii) Seller Counsel may disclose agrees prior to Closing to cause the Company to take receipt of any documents or other information (but excluding any analyses performed with such document or other information by Xxxxxx Xxxx) which is solely in the possession of either Seller or Xxxxxx Xxxx but is necessary or desirable to the Sellers operation of Company’s business (excluding the Construction Services Business).
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) acknowledges and agrees that Xxxxxx Xxxx has acted as counsel for the Seller, the Company and their respective Affiliates for several years and that the Seller reasonably anticipates that Xxxxxx Xxxx will continue to represent Seller and/or its Affiliates in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) expressly (i) consents to Xxxxxx Xxxx’x representation of the Seller and/or its Affiliates (excluding the Company and its Affiliates) and/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 Seller or any of its Affiliates, on the other hand, are adverse, including any matter relating to the transactions contemplated by this Agreement, and whether or not such matter is one in which Xxxxxx Xxxx may have previously advised the Seller, the Company or their respective Affiliates and (ii) consents to the disclosure by Xxxxxx Xxxx to the Seller or its Affiliates of any information learned by Seller Counsel Xxxxxx Xxxx in the course of its representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s or Xxxxxx Xxxx’x duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(cd) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, The Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing, the Company) further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Company or its Affiliates by Xxxxxx Xxxx in connection with this Agreement or the transactions contemplated hereby.
(e) From and after the Closing, the Company shall cease to have any attorney-client relationship with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is expressly engaged in writing by the Company to represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Second Closing Acquired Entities Seller and/or any of its Affiliates or (ii) the Seller and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxxxx Xxxx after the Second Closing)Closing shall not affect the foregoing provisions hereof. Furthermore, Xxxxxx Xxxx, in its sole discretion, shall be entitled permitted to withdraw from representing the Company in order to represent or continue so representing the Seller.
(f) The Seller, the Company and the Buyer consent to the arrangements in this Section 11.19 and waive such privilege only any actual or potential conflict of interest that may be involved in connection with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedany representation by Xxxxxx Xxxx permitted hereunder.
Appears in 1 contract
Samples: Merger Agreement (TopBuild Corp)
Legal Representation. (a) It is acknowledged by each The Parent, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Surviving Company) acknowledges and the Sellers have retained Xxxxxx & agrees that Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP (collectively, “Seller CounselPillsbury”) to act has acted as their counsel for the Sellers and the Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Pillsbury has not acted as counsel for any other Party Person, including the Parent.
(b) Only the Sellers, the Company and their respective Affiliates shall be considered clients of Pillsbury in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Parent, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Surviving Company) acknowledges and agrees that any disputeall confidential communications between the Sellers, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Pillsbury, on the other hand, are adverse, arises after in the Applicable Closing between Buyer, course of the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one handAcquisition Engagement, and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Sellers and their respective AffiliatesAffiliates (other than the Company), on and not the Company, and shall not pass to or be claimed, held, or used by the Parent or the Surviving Company upon or after the Closing. Accordingly, the Parent shall not have access to any such communications, or to the files of Pillsbury relating to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of Pillsbury in respect of the Acquisition Engagement constitute property of the client, only the Sellers and their Affiliates shall hold such property rights and (ii) Pillsbury shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Surviving Company or the Parent by reason of any attorney-client relationship between Pillsbury and the Company or otherwise; provided, however, that notwithstanding the foregoing, Pillsbury shall not disclose any such attorney-client communications or files to any third parties (other handthan representatives, Seller Counsel may represent any or all accountants and advisors of the Sellers and their Affiliates; provided, that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications). The Parent, on behalf of itself and its Affiliates (including after the Closing, the Surviving Company) irrevocably waives any right it may have to discover or obtain information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, work product protection or other expectation of confidentiality owed to the Sellers and/or their Affiliates. If and to the extent that, at any time subsequent to Closing, the Parent or any of its Affiliates (including after the Closing, the Surviving Company) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the Company or its Affiliates and any Person representing them that occurred at any time prior to the Closing, the Parent, on behalf of itself and its Affiliates (including after the Closing, the Surviving Company) shall be entitled to waive such privilege only with the prior written consent of the Seller Representative (such consent not to be unreasonably withheld).
(c) The Parent, on behalf of itself and its Affiliates (including after the Closing, the Surviving Company) acknowledges and agrees that Pillsbury has acted as counsel for the Sellers, the Company and their respective Affiliates for several years and that the Sellers reasonably anticipate that Pillsbury will continue to represent them and/or their Affiliates in such disputefuture matters. Accordingly, even though the Parent, on behalf of itself and its Affiliates (including after the Closing, the Surviving Company) expressly (i) consents to Pillsbury’s representation of the Sellers and/or their Affiliates and/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 Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities Parent and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective AffiliatesSurviving Company, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between are adverse, including any other Persons, with respect matter relating to the Transactionstransactions contemplated by this Agreement, (i) as to all communications among Seller Counseland whether or not such matter is one in which Pillsbury may have previously advised the Sellers, the First Closing Acquired Entities Company or their respective Affiliates and (with respect to communications prior ii) consents to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely disclosure by Pillsbury to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel Pillsbury in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counselor Pillsbury’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(cd) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, BuyerThe Parent, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing, the Surviving Company) further covenants and agrees that each shall not assert any claim against Pillsbury in respect of legal services provided to the Company or its Affiliates by Pillsbury in connection with this Agreement or the transactions contemplated hereby.
(e) From and after the Closing, the Surviving Company shall have no attorney-client relationship with Pillsbury, unless and to the extent Pillsbury is expressly engaged in writing by the Surviving Company to represent the Surviving Company after the Closing and either (i) such engagement involves no conflict of interest with respect to any Seller and/or any Seller’s Affiliates or (ii) such Seller and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Second Closing Acquired Entities Surviving Company by Pillsbury after the Second Closing)Closing shall not affect the foregoing provisions hereof. Furthermore, Pillsbury, in its sole discretion, shall be entitled permitted to waive such privilege only with withdraw from representing the consent of Surviving Company in order to represent or continue so representing the Sellers.
(f) The Sellers, not the Company and the Parent consent to the arrangements in this Section 10.14 and waive any actual or potential conflict of interest that may be unreasonably withheld, conditioned or delayedinvolved in connection with any representation by Pillsbury permitted hereunder.
Appears in 1 contract
Samples: Merger Agreement (CyrusOne Inc.)
Legal Representation. (a) It is acknowledged by each of Buyer agrees that, following the Parties that Closing, Xxxxxx, Xxxxx & Samotny Ltd. may serve as counsel to the First Closing Acquired EntitiesSellers, the Second Closing Acquired Entities Seller Representative and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel its Affiliates in connection with any matters related to this Agreement and the Transactionstransactions contemplated hereby, and that Seller Counsel has not acted as counsel for including any other Party in connection with litigation, claim or obligation arising out of or relating to this Agreement or the Transactionstransactions contemplated by this Agreement, and that none notwithstanding any representation by Xxxxxx, Xxxxx & Samotny Ltd. prior to the Closing of the other Parties Company and any Sellers. Buyer and the Company hereby (i) waive any claim they have or may have that Xxxxxx, Xxxxx & Samotny Ltd. has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers is otherwise prohibited from engaging in such representation and Buyer hereby (ii) agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, such a dispute arises after the Applicable Closing between BuyerBuyer or any the Company and a Seller, the First Closing Acquired Entities after the First Closing Seller Representative or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective any of its Affiliates, on the other handXxxxxx, Seller Counsel Xxxxx & Samotny Ltd. may represent such Seller, the Seller Representative or any or all of the Sellers and their its Affiliates in such dispute, dispute even though the interests of the Sellers and their Affiliates such Person(s) may be directly adverse to Buyer, the First Closing Acquired Entities Buyer or the Second Closing Acquired Entities, Company and even though Seller Counsel formerly Xxxxxx, Xxxxx & Samotny Ltd. may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities Company in any a matter substantially related to such dispute.
(b) The Sellers . Buyer represents that Buyer's own attorney has explained and helped Buyer evaluate the implications and their respective Affiliatesrisks of waiving the right to assert a future conflict against Xxxxxx, including Xxxxx & Samotny Ltd., and Buyer’s consent with respect to the First Closing Acquired Entities this waiver is fully informed. Buyer and the Second Closing Acquired Entities, acknowledge and Company also further agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller CounselXxxxxx, Xxxxx & Samotny Ltd. and any of the First Closing Acquired Entities (with respect to communications prior Company, Sellers and/or any Seller's Affiliates and representatives, that relate in any way to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliatestransactions contemplated by this Agreement, the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Seller Representative and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing Seller Representative and the Second Closing Acquired Entities after the Second Closing), and shall will not pass to or be claimed by BuyerBuyer or the Company. In addition, all of the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, client files and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel records in the course possession of its representation Xxxxxx, Xxxxx & Samotny Ltd. related to this Agreement and the transactions contemplated hereby will continue to be property of (and be controlled by) the Sellers, Seller Representative and the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall Company will not have any access to any such communications, or to them without the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseRepresentative's express prior written consent.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each The Acquiror, on behalf of itself and its Affiliates (including after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities and the Sellers have retained Surviving Corporation), acknowledges that Xxxxxx Xxxx & Xxxxxxx Xxxxxxxx LLP (collectively, “Seller CounselXxxxxx Xxxx”) to act as their counsel in connection with the Transactions, and that Seller Counsel acts or has not acted as counsel for the Stockholders, the Stockholder Representative and the Company and may continue to represent the Stockholders, the Stockholder Representative or any other Party of their respective Affiliates with respect to this Agreement and the transactions contemplated by this Agreement. Accordingly, the Acquiror, on behalf of itself and its Affiliates (including after the Closing, the Surviving Corporation), consents to such representation and waives any conflict that may result therefrom, provided, that such waiver is conditioned on (i) no Person from Xxxxxx Xxxx who is currently working on, or who has in the past five years worked on, any of the Acquiror’s or its current or past Affiliates’ matters representing the Stockholders, the Stockholder Representative, (prior to the Closing) the Company, or any of their respective Affiliates in connection with this Agreement or the Transactionstransactions contemplated by this Agreement (provided, that those Xxxxxx Xxxx Persons approved in writing by the Acquiror may so represent such Persons), and that none of (ii) Xxxxxx Xxxx not representing the other Parties has Stockholders, the status of a client of Seller Counsel for conflict of interest Stockholder Representative or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in (prior to the event that any disputeClosing) the Company, or any other matter in which the interests of Sellers and their respective Affiliates in connection with any dispute (including any Action but excluding any dispute regarding the Final Closing Statement) arising from this Agreement or the transactions contemplated by this Agreement.
(b) The Acquiror, on behalf of itself and its Affiliates (including after the Closing, the Surviving Corporation), acknowledges and agrees that all confidential communications between the Stockholders, the Stockholder Representative, the Company and its Subsidiaries and any of their respective their Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxxxx Xxxx, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of Xxxxxx Xxxx’x engagement in connection with this Agreement and the SellersAncillary Agreements and the transactions contemplated hereby and thereby (the “Acquisition Engagement”), the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to and any attendant attorney-client privilege, attorney work product protection, and expectation of Seller Counsel’s duty of confidentiality. Accordinglyclient confidentiality applicable thereto, Buyer shall be deemed to belong solely to the Stockholders and the Stockholder Representative, and not to the Company and its Affiliates Subsidiaries, and shall not have access pass to any such communicationsor be claimed, held, or to used by the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer Acquiror or any of its Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the Surviving Corporation). Accordingly, the Acquiror and its Affiliates (including after the Closing, the Surviving Corporation) shall not have ownership of any such communications (or to the files of Xxxxxx Xxxx relating to the Acquisition Engagement), regardless of such communications may be stored or located, and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, BuyerAcquiror, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the Surviving Corporation) irrevocably waives any right it may have to obtain such communications or other information or documentation relating to the Acquisition Engagement on the basis of any purported ownership; provided, that nothing herein shall require the Acquiror and its Affiliates to destroy communications already in its possession. The Acquiror hereby agrees not to assert, and to cause each of its Affiliates (including after the Closing, the Surviving Corporation) not to assert, any attorney-client privilege held by the Company and its Subsidiaries, or any officer, employee, director or manager thereof, with respect to any communication occurring with Xxxxxx Xxxx and relating to the Acquisition Engagement, it being the intention of the parties that all such rights to such attorney-client privilege and to control such attorney-client privilege shall be retained by the Stockholders and the Second Closing Acquired Entities after the Second Closing)Stockholder Representative, provided, that all such communications shall be entitled kept confidential and this Section 8.20 shall not constitute or be construed as a waiver or release of Xxxxxx Xxxx’x obligation to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned keep confidential any communication or delayedinformation in its possession.
Appears in 1 contract
Legal Representation. 9.16.1 Parent hereby agrees, on its own behalf and on behalf of the Surviving Corporation (afollowing Closing) It is acknowledged by and their respective directors, members, managers, partners, officers, employees and Affiliates, and each of the Parties that the First Closing Acquired Entitiestheir successors and assigns (all such parties, the Second Closing Acquired Entities “Waiving Parties”), that (i) Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP (the “Law Firm”) may represent the Holders, the Holders’ Representatives and their Affiliates (other than the Sellers have retained Xxxxxx & Xxxxxxx LLP Surviving Corporation) (collectively, the “Seller CounselHolder Group”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective AffiliatesCompany, on the other hand, Seller Counsel in connection with the negotiation, preparation, execution and delivery of this Agreement and the other Transaction Agreements, the other agreements contemplated hereby and thereby, and the consummation of the transactions contemplated hereby and thereby (such representation, the “Current Representation”), and (ii) the Law Firm (or any successor) may represent any or and all members of the Sellers and their Affiliates Holder Group or any director, member, manager, partner, officer, employee or Affiliate of the Holder Group in such connection with any dispute, litigation, claim, proceeding or obligation arising out of or relating to this Agreement or the other Transaction Agreements, any other agreements contemplated hereby and thereby, or the transactions contemplated hereby or thereby, notwithstanding the Current Representation (or any continued representation of the Company) and even though the interests of the Sellers and their Affiliates such Person(s) may be directly adverse to BuyerParent, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer Surviving Corporation and their respective Affiliates, including with respect and each of Parent and the Surviving Corporation on behalf of itself and the other Waiving Parties hereby consents thereto and waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. The parties acknowledge that the foregoing provision applies whether or not the Law Firm provides legal services to the First Surviving Corporation after the Closing Acquired Entities and the Second Closing Acquired Entities, Date.
9.16.2 The parties hereby irrevocably acknowledge and agree thatthat all communications between the Holder Group and their counsel, including the Law Firm, made in connection with any future disputesthe negotiation, lawsuitspreparation, actionsexecution, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closingdelivery and performance under, or any dispute or proceeding arising out of its or their respective Affiliatesrelating to, on this Agreement or the one handother Transaction Agreements, any other agreements contemplated hereby and thereby, or the Sellers transactions contemplated hereby or thereby, or any matter relating to any of their respective Affiliatesthe foregoing (including, on for the other handavoidance of doubt, or with or all of the client files and records in the possession of the Law Firm related thereto), shall be deemed to be attorney-client privileged communications between any other Persons, with respect the Holder Group and such counsel that belong to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, Holder Group and the attorney-client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)to, and shall be controlled by, the Holder Group and will not pass to or be claimed by BuyerParent, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Surviving Corporation or any of their respective Affiliates, the Waiving Parties and (ii) Seller Counsel may disclose to only be waived with the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation prior written consent of the SellersHolders’ Representatives on behalf of the Holder Group. From and after the Closing, Parent, on behalf of itself, the First Closing Acquired EntitiesSurviving Corporation (following Closing) and the Waiving Parties, the Second Closing Acquired Entities or their respective Affiliates, whether or waives and will not such information is subject to assert any attorney-client privilegeprivilege with respect to any communication between the Law Firm and the Company, attorney work product protectionits Subsidiaries or any Person in the Holder Group occurring during the Current Representation.
9.16.3 None of Parent, the Surviving Corporation or any of Seller Counsel’s duty the other Waiving Parties or any Person purporting to act on behalf of confidentiality. Accordinglyor through Parent (including, Buyer and its Affiliates shall not have for the avoidance of doubt, any of their officers that might also be members of the Holder Group), the Surviving Corporation or any of the Waiving Parties, will access or seek to obtain access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) Law Firm relating to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel Current Representation. The Law Firm shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyerany of Parent, the First Closing Acquired Entities Surviving Corporation or any of the Second Closing Acquired Entities Waiving Parties by reason of any attorney-client relationship between Seller Counsel the Law Firm and the First Closing Acquired Entities Company or otherwise. In addition, Parent and the Second Closing Acquired Entities Surviving Corporation agree that it would be impractical to remove all attorney-client communications from the records (including e-mails and other electronic files) of the Surviving Corporation. Accordingly, as applicable) or otherwise.
(c) If and to any such communications prior to the extentdate hereof, at any time subsequent to each Applicable ClosingParent and the Surviving Corporation, Buyer or together with any of its Affiliates (including the First Closing Acquired Entities after Waiving Parties, further agree that no such Person may use, rely on or access without the First Closing and prior written consent of the Second Closing Acquired Entities after Holders’ Representatives any of such communications in a manner that may compromise the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to of such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.communications. [Signature page follows]
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dare Bioscience, Inc.)
Legal Representation. (a) It is acknowledged by each Each of the Parties hereby agrees, on its own behalf and on behalf of its directors, managers, members, partners, officers, employees and Affiliates, that DLA Piper LLP (US) (“DLA Piper”) may serve as counsel to each and any of the First Closing Acquired EntitiesCompany Securityholders and their Affiliates (individually and collectively, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller CounselSecurityholder Group”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers Company and their respective Affiliatesits Subsidiaries, on the other hand, Seller Counsel may represent any or all in connection with the negotiation, preparation, execution, delivery and performance of this Agreement, and the consummation of the Sellers transactions contemplated hereby, and that, following consummation of the transactions contemplated hereby, DLA Piper (or any successor) may serve as counsel to the Securityholder Group or any director, manager, member, partner, officer, employee or Affiliate of any member of the Securityholder Group, in connection with any litigation, claim or obligation arising out of or relating to this Agreement or the transactions contemplated by this Agreement notwithstanding such representation or any continued representation of the Company and/or any of its Subsidiaries. In connection with any representation of the Company or its Subsidiaries expressly permitted pursuant to the prior sentence, Parent hereby irrevocably waives and agrees not to assert, and agrees to cause the Company and its Subsidiaries to irrevocably waive and not to assert any conflict of interest arising from or in connection with (i) DLA Piper’s prior representation of the Company and its Subsidiaries and (ii) DLA Piper’s representation of the Securityholder Group and their Affiliates in prior to and after the Closing. As to any privileged attorney-client communications between DLA Piper and the Company or between DLA Piper and the Company’s Subsidiaries prior to the Closing (collectively, the “Privileged Communications”), Parent, the Company, and each of its Subsidiaries together with any of their respective current or former Affiliates, Subsidiaries, successors or assigns, agree that no such dispute, even though the interests party may use or rely on any of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities Privileged Communications in any matter substantially related to such disputeaction against or involving any of the parties after the Closing.
(b) The Sellers and Buyer and their respective AffiliatesParent further agrees, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entitieson behalf of itself and, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, on behalf of the Second Closing Acquired Entities after the Second ClosingCompany and its Subsidiaries, that all privileged communications in any form or any of its format whatsoever between or their respective Affiliatesamong DLA Piper, on the one hand, and the Sellers Company, its Subsidiaries, or any member of the Securityholder Group, or any of their respective Affiliatesdirectors, officers, employees, or other representatives, on the other hand, or with or between that relate in any other Persons, with respect way to the Transactionsnegotiation, documentation and consummation of the transactions contemplated by this Agreement, any alternative transactions to the transactions contemplated by this Agreement presented to or considered by the Company or any member of the Securityholder Group, or any dispute arising under this Agreement, unless finally adjudicated to be not privileged by a court of law (i) as to all communications among Seller Counselcollectively, the First Closing Acquired Entities (with respect to communications prior to the First Closing“Privileged Deal Communications”), shall remain privileged after the Second Closing Acquired Entities (with respect to communications prior to and that the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection Privileged Deal Communications and the expectation of client confidence belongs relating thereto shall belong solely to the Sellers or their Affiliates (other than applicable member of the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Securityholder Group, and may shall be controlled by such member of the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Securityholder Group and shall not pass to or be claimed by BuyerParent, the First Closing Acquired Entities Company or any of its Subsidiaries. Parent agrees that it will not, and that it will cause the Company and its Subsidiaries not to, (i) access or use the Privileged Deal Communications, (ii) seek to have any member of the Securityholder Group waive the attorney client privilege or any other privilege, or otherwise assert that Parent, the Company or any of its Subsidiaries has the right to waive the attorney client privilege or other privilege applicable to the Privileged Deal Communications, or (iii) seek to obtain the Privileged Deal Communications or Non-Privileged Deal Communications (as defined below) from any member of the Securityholder Group or DLA Piper.
(c) Parent further agrees, on behalf of itself and, after the First Closing, on behalf of the Second Closing Acquired Entities after Company and its Subsidiaries, that all communications in any form or format whatsoever between or among any of DLA Piper, the Second ClosingCompany, its Subsidiaries, any member of the Securityholder Group, or any of their respective Affiliatesdirectors, and (ii) Seller Counsel may disclose officers, employees or other Affiliates or representatives that relate in any way to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation negotiation, documentation and consummation of the Sellerstransactions contemplated by this Agreement, any alternative transactions to the transactions contemplated by this Agreement presented to or considered by the Company or any member of the Securityholder Group, or any dispute arising under this Agreement and that are not Privileged Deal Communications (collectively, the First Closing Acquired Entities“Non-Privileged Deal Communications”), shall also belong solely to the applicable member of the Securityholder Group, shall be controlled by such member of the Securityholder Group and ownership thereof shall not pass to or be claimed by Parent, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer Company or any of its Affiliates Subsidiaries.
(including d) Notwithstanding the First Closing Acquired Entities after foregoing, in the First Closing event that a dispute arises between Parent, the Company or their Subsidiaries, on the one hand, and a third party other than a member of the Second Closing Acquired Entities after Securityholder Group or its Affiliates, on the Second Closing) shall have other hand, then Parent, the right to Company or their Subsidiaries may assert or waive any the attorney-client privilege with respect to prevent the disclosure of the Privileged Deal Communications to such third party; provided, however, that to the extent such dispute relates in any communication between way to this Agreement or the First Closing Acquired Entities and transactions contemplated hereby, none of Parent, the Second Closing Acquired Entities (as applicable) Company or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to Subsidiaries may waive such privilege only with without the prior written consent of such applicable member of the SellersSecurityholder Group, which consent shall not to be unreasonably withheld. If Parent, conditioned the Company or delayedany of their Subsidiaries is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged Deal Communications, then Parent shall immediately (and, in any event, within two (2) Business Days) notify the Securityholder Group in writing (including by making specific reference to this Section 11.15(d)) so that such member of the Securityholder Group can seek at its sole cost and expense, a protective order, and Parent agrees to use all commercially reasonable efforts to assist therewith.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each The Acquiror, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Surviving Corporation), acknowledges and the Sellers have retained Xxxxxx agrees that Xxxxxx, Xxxx & Xxxxxxx Xxxxxxxx LLP (collectively, “Seller CounselXxxxxx Xxxx”) to act has acted as their counsel for the Stockholders, the Stockholder Representative and for the Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxxxx Xxxx has not acted as counsel for any other Party Person, including the Acquiror.
(b) Only the Stockholders, the Stockholder Representative, the Company and their respective Affiliates shall be considered clients of Xxxxxx Xxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Acquiror, on behalf of itself and Buyer hereby agree thatits Affiliates (including, in after the event Closing, the Surviving Corporation), acknowledges and agrees that any disputeall confidential communications between the Stockholders, or any other matter in which the interests of Sellers Stockholder Representative, the Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxxxx Xxxx, on the other hand, are adversein the course of the Acquisition Engagement, arises and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Stockholders and their respective Affiliates (other than the Company) and not the Company, and shall not pass to or be claimed, held or used by the Acquiror or the Company (or, after the Applicable Closing between BuyerClosing, the First Closing Acquired Entities Surviving Corporation) upon or after the First Closing. Accordingly, the Acquiror shall not have access to any such communications, or to the files of Xxxxxx Xxxx relating to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of Xxxxxx Xxxx in respect of the Acquisition Engagement constitute property of the client, only the Stockholders and their respective Affiliates shall hold such property rights and (ii) Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Company (or, after the Closing, the Surviving Corporation) or the Second Closing Acquired Entities Acquiror by reason of any attorney-client relationship between Xxxxxx Xxxx and the Company or otherwise; provided, however, that notwithstanding the foregoing, Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisors of the Stockholders and their respective Affiliates; provided, that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications). The Acquiror, on behalf of itself and its Affiliates (including, after the Second Closing, the Surviving Corporation), irrevocably waives any right it may have to discover or obtain information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, attorney work product protection or other expectation of confidentiality owed to the Stockholders and/or their respective Affiliates. If and to the extent that, at any time subsequent to Closing, the Acquiror or any of its Affiliates (including, after the Closing, the Surviving Corporation) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the Company or its Affiliates and any Person representing them that occurred at any time prior to the Closing, the Acquiror, on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation), shall be entitled to waive such privilege only with the prior written consent of the Stockholder Representative (such consent not to be unreasonably withheld).
(c) The Acquiror, on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation), acknowledges and agrees that Xxxxxx Xxxx has acted as counsel for the Stockholders, the Stockholder Representative, the Company and their respective Affiliates and that the Stockholders reasonably anticipate that Xxxxxx Xxxx will continue to represent them and/or their respective Affiliates in future matters. Accordingly, the Acquiror, on behalf of itself and its Affiliates (including, after the Closing, the Surviving Corporation), expressly (i) consents to Xxxxxx Xxxx’x representation of the Stockholders and/or their respective Affiliates and/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 Acquiror and the Surviving Corporation, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers Stockholders or any of their respective Affiliates, on the other hand, or with or between are adverse, including any other Persons, with respect matter relating to the Transactionstransactions contemplated by this Agreement, (i) as to all communications among Seller Counseland whether or not such matter is one in which Xxxxxx Xxxx may have previously advised the Stockholders, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers Company or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose consents to the Sellers disclosure by Xxxxxx Xxxx to the Stockholders or their respective Affiliates of any information learned by Seller Counsel Xxxxxx Xxxx in the course of its representation of the SellersStockholders, the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s protection or Xxxxxx Xxxx’x duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(cd) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, BuyerThe Acquiror, on behalf of itself and its Affiliates (including the First Closing Acquired Entities including, after the First Closing, the Surviving Corporation), further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Company or its Affiliates by Xxxxxx Xxxx in connection with this Agreement or the transactions contemplated hereby.
(e) From and after the Closing, the Surviving Corporation shall cease to have any attorney-client relationship with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is expressly engaged in writing by the Surviving Corporation to represent the Surviving Corporation after the Closing and either (i) such engagement involves no conflict of interest with respect to the Second Closing Acquired Entities Stockholders and/or any of their respective Affiliates or (ii) the Stockholders and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Surviving Corporation by Xxxxxx Xxxx after the Second Closing)Closing shall not affect the foregoing provisions hereof. Furthermore, Xxxxxx Xxxx, in its sole discretion, shall be entitled permitted to waive such privilege only with withdraw from representing the consent of Surviving Corporation in order to represent, or continue so representing, the Sellers, not to be unreasonably withheld, conditioned or delayedStockholders.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company) acknowledges and agrees that Xxxxxx, Xxxx & Xxxxxxxx LLP (“Xxxxxx Xxxx”) has acted as counsel for the Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel Company in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxxxx Xxxx has not acted as counsel for any other Party Person, including the Buyer.
(b) Only the Seller, the Company and their respective Affiliates shall be considered clients of Xxxxxx Xxxx in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Company) acknowledges and agrees that any disputeall confidential communications between the Seller, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxxxx Xxxx, on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, that relate to and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel were in the course of its representation of the SellersAcquisition Engagement, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Seller Counsel’s duty of confidentialityand its Affiliates (other than the Company), and not the Company, and shall not pass to or be claimed, held, or used by the Buyer or the Company upon or after the Closing. Accordingly, the Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller CounselXxxxxx Xxxx relating to the Acquisition Engagement, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ai) to the extent that files of Seller Counsel Xxxxxx Xxxx in respect of the Acquisition Engagement constitute property of the client, only the Sellers Seller and their respective its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (Bii) Seller Counsel Xxxxxx Xxxx shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Company or the Second Closing Acquired Entities Buyer by reason of any attorney-client relationship between Seller Counsel Xxxxxx Xxxx and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or otherwise.
; provided, however, that notwithstanding the foregoing, Xxxxxx Xxxx shall not disclose any such attorney-client communications or files to any third parties (c) other than representatives, accountants and advisors of the Seller and its Affiliates; provided, that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications). Notwithstanding the foregoing, nothing in this Section 11.19 shall prohibit the Buyer or its Affiliates from seeking proper discovery of documents or information, nor Seller or its Affiliates from asserting that such documents and information are not discoverable due to the attorney-client privilege or other legal protection. If and to the extentextent that, at any time subsequent to each Applicable Closing, a dispute arises between the Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the Company) and a third party (other than a party to this Agreement or any of its Affiliates), the Buyer and the Second Closing Acquired Company Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or their respective Affiliates, its Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing; provided, however, that the Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and Closing, the Second Closing Acquired Entities after the Second Closing), Company) shall be entitled to waive such privilege only with the prior written consent of the Sellers, Seller (such consent not to be unreasonably withheld).
(c) The Buyer, conditioned on behalf of itself and its Affiliates (including after the Closing, the Company) further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Company or delayedits Affiliates by Xxxxxx Xxxx in connection with this Agreement or the transactions contemplated hereby.
(d) From and after the Closing, the Company shall cease to have any attorney-client relationship with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is expressly engaged in writing by the Company to represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Seller and/or any of its Affiliates or (ii) the Seller and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxxxx Xxxx after the Closing shall not affect the foregoing provisions hereof. Furthermore, Xxxxxx Xxxx, in its sole discretion, shall be permitted to withdraw from representing the Company in order to represent or continue so representing the Seller.
(e) The Seller (acting on behalf of itself and the Company) and the Buyer consent to the arrangements in this Section 11.19 and waive any actual or potential conflict of interest that may be involved in connection with any representation by Xxxxxx Xxxx permitted hereunder.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Clearway Energy, Inc.)
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that Closing, the First Closing Acquired Entities) acknowledges and agrees that Xxxxxx, Xxxx & Xxxxxxxx LLP and Xxxxx Day, (the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller CounselFirms”) to act have acted as their counsel for the Seller in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel has in connection with this Agreement and the transactions contemplated hereby, the Firms have not acted as counsel for any other Party in connection with Person, including the Transactions, Buyer.
(b) Only the Seller and that none its Affiliates shall be considered clients of the other Parties has Firms in the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereofAcquisition Engagement. The Sellers Buyer, on behalf of itself and Buyer hereby agree thatits Affiliates (including after the Closing, in the event Acquired Entities) acknowledges and agrees that any dispute, or any other matter in which all confidential communications between the interests of Sellers Seller and their respective its Affiliates, on the one hand, and the Firms, on the other hand, in the course of the Acquisition Engagement, and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to belong solely to the Seller and its Affiliates (other than the Acquired Entities), and not the Acquired Entities, and shall not pass to or be claimed, held, or used by the Buyer or the Acquired Entities upon or after the Closing. Accordingly, the Buyer shall not have access to any such communications, or to the files of the Firms relating to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of the Firms in respect of the Acquisition Engagement constitute property of the client, only the Seller and its Affiliates shall hold such property rights and (ii) the Firms shall not have any duty whatsoever to reveal or disclose any such attorney-client communications or files to the Acquired Entities or the Buyer by reason of any attorney-client relationship between the Firms and the Acquired Entities or otherwise; provided, however, that notwithstanding the foregoing, the Firms shall not disclose any such attorney-client communications or files to any third parties (other than representatives, accountants and advisors of the Seller and its Affiliates; provided, that such representatives, accounts and advisors are instructed to maintain the confidence of such attorney-client communications). The Buyer, on behalf of itself and its Affiliates (including after the First Closing Closing, the Acquired Entities) irrevocably waives any right it may have to discover or obtain information or documentation relating to the Acquisition Engagement, to the extent that such information or documentation was subject to an attorney-client privilege, work product protection or other expectation of confidentiality owed to the Seller and/or its Affiliates. If and to the extent that, at any time subsequent to Closing, the Buyer or any of its Affiliates (including after the Closing, the Acquired Entities) shall have the right to assert or waive any attorney-client privilege with respect to any 65 communication between the Acquired Entities or their Affiliates and any Person representing them that occurred at any time prior to the Closing, the Buyer, on behalf of itself and its Affiliates (including after the First Closing, the Acquired Entities) shall be entitled to waive such privilege only with the prior written consent of the Seller (such consent not to be unreasonably withheld).
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Acquired Entities) acknowledges and agrees that the Firms have acted as counsel for the Seller and its Affiliates and that the Seller reasonably anticipates that the Firms will continue to represent it and/or its Affiliates in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Acquired Entities) expressly (i) consents to the Firms’ representation of the Seller and/or its Affiliates and/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 Second Closing Acquired Entities after Entities, on the Second Closing)one hand, and the Seller or any of its Affiliates, on the other hand, are adverse, arises after including any matter relating to the Applicable Closing between Buyertransactions contemplated by this Agreement, and whether or not such matter is one in which the Firms may have previously advised the Seller, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose consents to the Sellers disclosure by the Firms to the Seller or their respective its Affiliates of any information learned by Seller Counsel the Firms in the course of its their representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s or the Firms’ duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(cd) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, The Buyer, on behalf of itself and its Affiliates (including after the First Closing Closing, the Acquired Entities) further covenants and agrees that each shall not assert any claim against the Firms in respect of legal services provided to the Acquired Entities or their respective Affiliates by the Firms in connection with this Agreement or the transactions contemplated hereby.
(e) From and after the Closing, the Acquired Entities shall cease to have any attorney-client relationship with the Firms, unless and to the extent the Firms are expressly engaged in writing by any of the Acquired Entities to represent any or all of the Acquired Entities after the First Closing and either (i) such engagement involves no conflict of interest with respect to the Second Closing Seller and/or any of its Affiliates or (ii) the Seller and/or any such Affiliate, as applicable, consent in writing to such engagement. Any such representation of any of the Acquired Entities by the Firms after the Second Closing)Closing shall not affect the foregoing provisions hereof. Furthermore, each of the Firms, in their respective sole discretion, shall be entitled permitted to withdraw from representing the Acquired Entities and their Affiliates in order to represent or continue so representing the Seller.
(f) The Seller and the Buyer consent to the arrangements in this Section 10.19 and waive such privilege only any actual or potential conflict of interest that may be involved in connection with any representation by the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedFirms permitted hereunder.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Eaton Corp PLC)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities Conflicts and Privilege.
(i) The Purchaser and the Sellers have retained Xxxxxx & Xxxxxxx LLP Company, on behalf of their respective successors and assigns (collectivelyincluding, “Seller Counsel”) to act as their counsel in connection with after the TransactionsClosing), and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any disputea dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the Sponsor, the stockholders, shareholders or any holders of other matter in which the equity interests of Sellers and the Purchaser or the Sponsor and/or any of their respective Affiliatesdirectors, members, partners, officers, employees or Affiliates (collectively, the “IPAX Group”), on the one hand, and Buyer and its Affiliates (including y) the First Purchaser following the Closing Acquired Entities after and/or any member of the First Closing and the Second Closing Acquired Entities after the Second Closing)IM Group, on the other hand, are adverseany legal counsel, arises including W&C, that represented the Purchaser and/or the Sponsor prior to the Closing may represent the Sponsor and/or any other member of the IPAX Group, in such dispute even though the interests of such Persons may be directly adverse to the Purchaser and its Affiliates (following the Closing), and even though such counsel may have represented the Purchaser in a matter substantially related to such dispute, or may be handling ongoing matters for the Purchaser and/or the Sponsor. The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Applicable Closing), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby) between Buyeror among the Purchaser, the First Closing Acquired Entities after Sponsor and/or any other member of the First Closing or the Second Closing Acquired Entities after the Second ClosingIPAX Group, on the one hand, and the Sellers and their respective AffiliatesW&C, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-/client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely shall survive the Transactions and belong to the Sellers or their Affiliates (other than the First Closing Acquired Entities IPAX Group after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed or controlled by Buyerthe Purchaser and its Affiliates (following the Closing). Notwithstanding the foregoing, any privileged communications or information shared by the First Company prior to the Closing Acquired Entities with the Purchaser or the Sponsor under a common interest agreement shall remain the privileged communications or information of the Purchaser.
(ii) The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the First Closing), hereby agree that, in the Second Closing Acquired Entities event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Second ClosingClosing between or among (x) the stockholders, shareholders or holders of other equity interests of the Company and/or any of their respective Affiliatesdirectors, members, partners, officers, employees or Affiliates (collectively, the “IM Group”), on the one hand, and (iiy) Seller Counsel may disclose the Company (following the Closing) and/or any member of the IPAX Group, on the other hand, any legal counsel, including Xxxxxx & Xxxxxxx LLP (“Latham”) that represented the Company prior to the Sellers or their respective Affiliates Closing may represent any information learned by Seller Counsel in the course of its representation member of the SellersIM Group in such dispute even though the interests of such Persons may be directly adverse to the Company (following the Closing), and even though such counsel may have represented the First Closing Acquired Entities, Purchaser and/or the Second Closing Acquired Entities or their respective Affiliates, whether or not Company in a matter substantially related to such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communicationsdispute, or to may be handling ongoing matters for the files of Seller Counsel, whether or not any Applicable Closing occursCompany (following the Closing). Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing The Purchaser and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, BuyerCompany, on behalf of itself their respective successors and its Affiliates assigns (including the First Closing Acquired Entities including, after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled further agree that, as to waive such privilege only all legally privileged communications prior to the Closing (made in connection with the consent negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby) between or among the Company and/or any member of the SellersIM Group, on the one hand, and Latham, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the IM Group after the Closing, and shall not pass to or be unreasonably withheldclaimed or controlled by the Company (following the Closing). Notwithstanding the foregoing, conditioned any privileged communications or delayedinformation shared by the Purchaser prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Company (following the Closing).
Appears in 1 contract
Samples: Business Combination Agreement (Inflection Point Acquisition Corp.)
Legal Representation. (a) It is acknowledged by Buyer, on behalf of itself and each of the Parties that Buyer Related Persons and its and their respective Affiliates (including after the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company and the Sellers have retained Xxxxxx MUI Subsidiaries), acknowledges and agrees that Xxxxxx, Xxxx & Xxxxxxx Xxxxxxxx LLP (collectively, “Seller CounselXxxxxx Xxxx”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, Seller and its Affiliates for several years and that none Seller reasonably anticipates that Xxxxxx Xxxx will continue to represent them in their future matters. Accordingly, Buyer, on behalf of itself and each of the other Parties has Buyer Related Persons and its and their respective Affiliates (including after the status of a client Closing, the Company and the MUI Subsidiaries) expressly consents to: (a) Xxxxxx Xxxx’x representation of Seller Counsel for conflict of interest or and Seller’s Affiliates in any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other post-Closing matter in which the interests of Sellers and their respective Affiliatesany of the Buyer Related Persons or the Company or any of the MUI Subsidiaries, on the one hand, and Buyer and Seller or its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Affiliates, on the other hand, are adverse, arises after including, without limitation, any matter relating to the Applicable Closing between BuyerTransactions or any disagreement or dispute relating thereto, and whether or not such matter is one in which Xxxxxx Xxxx may have previously advised Seller, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers MUI Subsidiaries or their respective Affiliates and (b) consent to the disclosure by Xxxxxx Xxxx to Seller or its Affiliates of any information learned by Seller Counsel Xxxxxx Xxxx in the course of its representation of the SellersSeller, the First Closing Acquired Entities, Company or any of the Second Closing Acquired Entities MUI Subsidiaries or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s privilege or Xxxxxx Xxxx’x duty of confidentiality. AccordinglyFurthermore, Buyer, on behalf of itself and each of the Buyer Related Persons and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities including after the First Closing Closing, the Company and the Second Closing Acquired Entities MUI Subsidiaries) irrevocably waives any right it may have to discover or obtain information or documentation relating to the representation of Seller and/or its Affiliates by Xxxxxx Xxxx in the Transactions, to the extent that such information or documentation was privileged as to Seller and/or its Affiliates. Buyer, on behalf of itself and each of the Buyer Related Persons and its and their respective Affiliates (including after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Company and the MUI Subsidiaries) further covenants and agrees that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the Company, any of the MUI Subsidiaries or their Affiliates by Xxxxxx Xxxx in connection with this Agreement or the Second Closing Acquired Entities by reason of Transactions. Upon and after the Closing, the Company and the MUI Subsidiaries shall cease to have any attorney-client relationship between with Xxxxxx Xxxx, unless and to the extent Xxxxxx Xxxx is specifically engaged in writing by the Company or any of the MUI Subsidiaries to represent it after the Closing and either such engagement involves no conflict of interest with respect to Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (and/or its Affiliates represented by Xxxxxx Xxxx at such time, as applicable) , consent in writing at the time to such engagement. Any such representation of the Company or otherwise.
(c) any of the MUI Subsidiaries by Xxxxxx Xxxx after the Closing shall not affect the foregoing provisions hereof. If and to the extentextent that, at any time subsequent to each Applicable Closing, any of the Buyer Related Persons or any of its their respective Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the Company and the Second Closing Acquired Entities after the Second ClosingMUI Subsidiaries) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and Company or any of the Second Closing Acquired Entities (as applicable) MUI Subsidiaries or their respective Affiliates, Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, Buyer, on behalf of itself and each of the Buyer Related Persons and its and their respective Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the Company and the Second Closing Acquired Entities after the Second Closing), MUI Subsidiaries) shall be entitled to waive such privilege only with the prior written consent of Seller. Notwithstanding the Sellersforegoing, in the event that a dispute arises between Buyer, the Company, and/or any of the MUI Subsidiaries and a third party other than Seller after the Closing, the Company or any of the MUI Subsidiaries, as applicable, may assert the attorney-client privilege to prevent disclosure of confidential communications between Xxxxxx Xxxx and the Company and/or any of the MUI Subsidiaries that occurred prior to the Closing by Xxxxxx Xxxx to such third party; provided, further, that the Company and the MUI Subsidiaries may not to be unreasonably withheld, conditioned or delayedwaive such privilege without the prior written consent of Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired EntitiesBuyer, the Second Closing Acquired Entities Company, the Company’s Subsidiaries, and the Sellers have retained Xxxxxx & Xxxxxxx LLP their respective Affiliates (collectively, “Seller CounselBuyer Parties”) to act as their counsel in connection with the Transactionsacknowledge and agree that Xxxxxx and Xxxxxx, P.A. (“Xxxxxx and that Seller Counsel Xxxxxx”) has not acted as counsel for any other Party in connection with the Transactions, Seller and Seller’s Affiliates (“Seller Parties”) for several years and that none of the other Seller Parties has the status of a client reasonably anticipate that Xxxxxx and Xxxxxx will continue to represent them in future matters. Accordingly, Buyer Parties expressly: (a) consent to Xxxxxx and Xxxxxx’x representation of Seller Counsel for conflict of interest or Parties in any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other post-Closing matter in which the interests of Sellers and their respective Affiliates, Buyer Parties on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Seller Parties, on the other hand, are adverse, arises after the Applicable Closing between Buyerincluding, the First Closing Acquired Entities after the First Closing without limitation, any matter relating to this Agreement or the Second Closing Acquired Entities after transactions contemplated by this Agreement or any disagreement or dispute relating thereto (the Second Closing, on the one hand, “Transaction Matters”) and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect consent to the First Closing Acquired Entities disclosure by Xxxxxx and the Second Closing Acquired Entities, acknowledge and agree that, Xxxxxx to Seller Parties in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any Transaction Matters of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel Xxxxxx and Xxxxxx in the course of its representation of the Sellersof, Seller, the First Closing Acquired EntitiesCompany, the Second Closing Acquired Entities or Company’s Subsidiaries, and their respective AffiliatesAffiliates prior to Closing, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s privilege or Xxxxxx and Xxxxxx’x duty of confidentiality. AccordinglyFurthermore, in any post-Closing matter in which the interests of Buyer Parties, on the one hand, and Seller Parties, on the other hand, are adverse, Buyer and its Affiliates shall not Parties irrevocably waive any right they may have access to any such communications, discover or obtain information or documentation relating to the files representation of Seller Counselby Xxxxxx and Xxxxxx in connection with the Transaction Matters, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files such information or documentation was privileged as to Seller. Buyer Parties further covenant and agree that each shall not assert any claim against Xxxxxx and Xxxxxx in respect of Seller Counsel constitute property of legal services provided to Seller, the clientCompany, only the Sellers and Company’s Subsidiaries, or their respective Affiliates (other than by Xxxxxx and Xxxxxx in connection with the First Closing Acquired Entities Transaction Matters. Upon and after the First Closing Closing, the Company and the Second Closing Acquired Entities after the Second Closing) Company’s Subsidiaries shall hold such property rights, and (B) Seller Counsel shall cease to have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between with Xxxxxx and Xxxxxx, unless and to the extent Xxxxxx and Xxxxxx is specifically engaged in writing by the Company or the Company’s Subsidiaries to represent the Company or the Company’s Subsidiaries after the Closing and either such engagement involves no conflict of interest with respect to Seller Counsel Parties or Seller Parties consent in writing at the time to such engagement. Any such representation of the Company or the Company’s Subsidiaries by Xxxxxx and Xxxxxx after the First Closing Acquired Entities and shall not affect the Second Closing Acquired Entities (as applicable) or otherwise.
(c) foregoing provisions hereof. If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) Parties shall have the right to assert or waive any an attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or their respective Affiliates, its Affiliates and any Person representing themthem relating in any manner to the Transaction Matters, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), Buyer Parties shall be entitled to waive such privilege only with the prior written consent of the Sellers, Seller (such consent not to be unreasonably withheld, conditioned or delayed). This section is for the benefit of Seller Parties and Xxxxxx and Xxxxxx, and Seller Parties and Xxxxxx and Xxxxxx are intended third-party beneficiaries of this section. This section shall be irrevocable, and no term of this section may be amended, waived or modified, without the prior written consent of Seller and Xxxxxx and Xxxxxx.
Appears in 1 contract
Samples: Stock Purchase Agreement (Patterson Companies, Inc.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired EntitiesBuyer, Merger Sub, the Second Closing Acquired Entities Company and the Sellers have retained Xxxxxx their respective Affiliates acknowledge and agree that Xxxxxx, Xxxx & Xxxxxxx Xxxxxxxx LLP (collectively, “Seller CounselXxxxxx Xxxx”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none some of the other Parties has stockholders of the status of a client of Seller Counsel Company, the Company and their respective Affiliates for conflict of interest or any other purposes as a result thereof. The Sellers several years and Buyer hereby agree that, in the event of any post-Closing disputes between the parties hereto, such stockholders of the Company reasonably anticipate that Xxxxxx Xxxx will represent them in such matters. Accordingly, Buyer, Merger Sub, the Company and their respective Affiliates expressly: (a) consent to Xxxxxx Xxxx’x representation of such stockholders of the Company in any dispute, or any other post-Closing matter in which the interests of Sellers Buyer, Merger Sub and their respective Affiliates, the Company on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after stockholders of the First Closing and the Second Closing Acquired Entities after the Second Closing)Company, on the other hand, are adverse, arises after the Applicable Closing between Buyerwhether or not such matter is one in which Xxxxxx Xxxx may have previously advised such stockholders, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its Company or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect ; (b) consent to the Transactions, (i) as disclosure by Xxxxxx Xxxx to all communications among Seller Counsel, such stockholders of the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers Company or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel Xxxxxx Xxxx in the course of its representation of the Sellers, stockholders of the First Closing Acquired Entities, the Second Closing Acquired Entities Company or their respective AffiliatesAffiliates (other than the Company and its Subsidiaries), whether or not such information is subject to attorney-attorney client privilegeprivilege or Xxxxxx Xxxx’x duty of confidentiality; and (c) do not consent to the disclosure after the Closing Date by Xxxxxx Xxxx to such stockholders of the Company or their Affiliates of any information owned by the Company learned by Xxxxxx Xxxx in the course of its representation of the Company, whether or not such information is subject to attorney work product protection, of Seller Counsel’s client privilege or Xxxxxx Xxxx’x duty of confidentiality. AccordinglyFurthermore, Buyer Buyer, Merger Sub and its Affiliates shall not the Company irrevocably waive any right they may have access to any such communications, discover or obtain information or documentation relating to the files representation of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality such stockholders of the foregoingCompany by Xxxxxx Xxxx in the transactions contemplated hereby, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of such information or documentation was privileged as to such stockholders; provided, however, that Buyer, Merger Sub, the clientCompany or their respective Affiliates are not prohibited from obtaining or using information that is owned by the Company or is in its possession. Buyer, only Merger Sub, the Sellers Company and their respective Affiliates (other than further covenant and agree that each shall not assert any claim against Xxxxxx Xxxx in respect of legal services provided to the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal Company or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities its Affiliates by Xxxxxx Xxxx in connection with this Agreement or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) transactions contemplated hereby. If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer Buyer, Merger Sub, the Company or any of its their Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any an attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company or their respective Affiliates, its Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, Buyer, on behalf of itself and its Merger Sub, the Company or their Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the without any consent of any holders of Shares solely to the Sellers, extent such privilege is not shared or common to be unreasonably withheld, conditioned or delayedsuch holders of Shares.
Appears in 1 contract
Samples: Merger Agreement (American Tire Distributors Holdings, Inc.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities Company Group and the Sellers Seller have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Seller’s Counsel”) to act as their counsel in connection with the Transactions, transactions contemplated hereby and that Seller Xxxxxx’s Counsel has not acted as counsel for any other Party in connection with the Transactions, transactions contemplated hereby and that none of the other Parties has the status of a client of Seller Counsel for Buyer hereby waives any conflict of interest or any other purposes as a result thereof. The Sellers Seller and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Seller or any of its Affiliates, on the one hand, and Buyer and or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Group), on the other hand, are adverse, arises after the Applicable Closing between Buyer, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second ClosingCompany Group), on the one hand, and the Sellers and their respective Seller or any of its Affiliates, on the other hand, Seller Seller’s Counsel may represent any or all of the Sellers Seller and their its Affiliates in such dispute, dispute even though the interests of the Sellers Seller and their its Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities Buyer or the Second Closing Acquired EntitiesCompany Group, and even though Seller Seller’s Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities Company Group in any matter substantially related to such dispute.
(b) The Sellers Seller and Buyer and their respective Affiliates, including following the Closing with respect to the First Closing Acquired Entities and the Second Closing Acquired EntitiesCompany Group, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations Actions or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, Company Group or any of its or their respective Affiliates, on the one hand, and the Sellers Seller or any of their respective its Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactionstransactions contemplated by this Agreement or otherwise, (i) as to all communications among Seller Seller’s Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing)Company Group, the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers Seller or any of their respective its Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers Seller or their its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Group), and may be controlled by the Sellers Seller or their its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Group), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second ClosingCompany Group, or any of their respective Affiliates, Affiliates and (ii) Seller Seller’s Counsel may disclose to the Sellers Seller or their respective its Affiliates any information learned by Seller Xxxxxx’s Counsel in the course of its representation of the SellersSeller, the First Closing Acquired Entities, the Second Closing Acquired Entities Company Group or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Seller’s Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Seller’s Counsel, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (A) to the extent that files of Seller Seller’s Counsel constitute property of the client, only the Sellers Seller and their respective its Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, rights and (B) Seller Seller’s Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Buyer or the Second Closing Acquired Entities Company Group by reason of any attorney-client relationship between Seller Seller’s Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company Group or otherwise.
(c) If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Group) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company Group or their respective Affiliates, Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second ClosingCompany Group), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSeller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Delek Logistics Partners, LP)
Legal Representation. (a) It is acknowledged by each Each of the Parties parties to this Agreement hereby agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees and Affiliates, that the First Closing Acquired EntitiesFried, the Second Closing Acquired Entities Frank, Harris, Xxxxxxx & Xxxxxxxx LLP has served and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted may serve as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer to Jupiter and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyercollectively, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing“Seller Group”), on the one hand, and the Sellers Company and their respective Affiliatesits Subsidiaries, on the other hand, Seller Counsel may represent in connection with the negotiation, preparation, execution and delivery of (i) this Agreement, (ii) the TMG Transfer Agreement, and (iii) any or all agreement entered into by Gelco in connection with the sale of TMG, and the consummation of the Sellers transactions contemplated hereby and their Affiliates in such disputethereby, even though the interests and that, following consummation of the Sellers and their Affiliates transactions contemplated hereby or thereby, Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP (or any successor) may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect serve as counsel to the First Closing Acquired Entities and Seller Group or any director, member, partner, officer, employee or Affiliate of the Second Closing Acquired Entities, acknowledge and agree that, Seller Group in connection with any future disputesLitigation, lawsuitsclaim or obligation arising out of or relating to (i) this Agreement, actions(ii) the TMG Transfer Agreement, proceedingsor (iii) any agreement entered into by Gelco in connection with the sale of TMG, investigations or the transactions contemplated hereby or thereby, or any other mattersmatter notwithstanding such representation (or any continued representation) of the Company and/or any of its Subsidiaries, including and each of the parties hereto hereby consents thereto and waives any dispute between Buyerconflict of interest arising therefrom, and each of such parties shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the First Closing Acquired Entities after parties to this Agreement further agrees to take the First Closingsteps necessary to ensure any privilege attaching as a result of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP’s service as counsel to the Second Closing Acquired Entities after the Second Closing, Company or any of its or their respective Affiliates, on Subsidiaries in connection with the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, transactions contemplated by (i) as to all communications among Seller Counselthis Agreement, (ii) the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective AffiliatesTMG Transfer Agreement, and (iii) any agreement entered into by Gelco in connection with the sale of TMG will survive the Closing and will remain in effect. In addition, if the transactions contemplated by (i) this Agreement, (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rightsTMG Transfer Agreement, and (Biii) Seller Counsel shall have no duty whatsoever any agreement entered into by Gelco in connection with the sale of TMG are consummated, all of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP’s records related to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason transactions will become property of any attorney-client relationship between Seller Counsel (and be controlled by) Jupiter and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Company shall not retain any copies of such records or otherwisehave any access to them.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each Buyer, on behalf of the Parties itself and its Affiliates, acknowledges and agrees that the First Closing Acquired Entities, the Second Closing Acquired Entities Seller’s Counsel has acted as counsel for Seller and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactionsits Affiliates, and that Seller reasonably anticipates that Seller’s Counsel has not acted as counsel for any other Party will continue to represent Seller and its Affiliates in connection with the Transactionsfuture matters. Accordingly, Buyer, on behalf of itself and that none of the other Parties has the status of a client its Affiliates, expressly consents to: (a) Seller’s Counsel representation of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree thatits Affiliates, in the event that any dispute, or any other post-Closing matter in which the interests of Sellers and their respective AffiliatesBuyer, on the one hand, and Buyer and Seller or its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Affiliates, on the other hand, are adverse, arises after including any matter relating to the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing Contemplated Transactions or the Second Closing Acquired Entities after the Second Closing, on the one handany disagreement or dispute relating thereto, and the Sellers and their respective Affiliates, on the other hand, Seller whether or not such matter is one in which Seller’s Counsel may represent any have previously advised Seller or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (iib) the disclosure by Seller’s Counsel to Seller Counsel may disclose to the Sellers or their respective Affiliates its Affiliates, as applicable, of any information learned by Seller Seller’s Counsel in the course of its representation of the SellersSeller or its Affiliates, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliatesas applicable, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller privilege or Seller’s Counsel’s duty of confidentiality. AccordinglyFurthermore, Buyer Buyer, on behalf of itself and its Affiliates, (1) irrevocably waives any right it may have to discover or obtain information or documentation relating to the representation of Seller and its Affiliates by Seller’s Counsel in the Contemplated Transactions, to the extent that such information or documentation (a) was privileged as to Seller or its Affiliates and (b) does not evidence fraud by Seller against Buyer (“Confidential Communications”), and (2) agrees that (i) the privilege with respect to such Confidential Communications shall remain with Seller following the Closing such that, without limiting Seller’s rights to such privilege, Seller alone shall have and maintain the right to waive the privilege, (ii) if Seller’s former officers or managers leave any emails or other documents (both electronic or otherwise) that contain Confidential Communications on the servers of any Sale Entity or the JV Company, such occurrence shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality constitute a waiver of the foregoingattorney-client privilege or any other privilege applicable to such documents, upon and after each Applicable Closing, (Aiii) to the extent that files any emails or other documents (either electronic or otherwise) containing any Confidential Communications are included in the computer server(s) of Seller Counsel constitute property any Sale Entity or the JV Company or are otherwise within the records of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Sale Entities after the First Closing and the Second Closing Acquired Entities after JV Company following the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose it will, upon discovery of any such attorney-client communications documents, not review, disclose, or files to otherwise use such documents or the Confidential Communications for any purpose. Buyer, on behalf of itself and its Affiliates, further covenants and agrees that each shall not assert any claim against Seller’s Counsel in respect of legal services provided to the First Closing Acquired Sale Entities or the Second Closing Acquired Entities JV Company by reason of any attorney-client relationship between Seller Seller’s Counsel and in connection with this Agreement or the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) Contemplated Transactions. If and to the extentextent that, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Seller or their respective Affiliates, its Affiliates and any Person representing them, them that occurred at any time prior to such Applicable the Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Affiliates, shall be entitled to waive such privilege only with the prior written consent of the Sellers, not to be unreasonably withheld, conditioned or delayedSeller’s Counsel and Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Southwest Gas Holdings, Inc.)
Legal Representation. (a) It is acknowledged by each of the Parties that the First Closing Acquired Entities, the Second Closing Acquired Entities JDSPC and the Sellers have retained Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxx LLP (collectively, “Seller CounselK&E”) to act have each acted as their legal counsel for Seller in connection with this Agreement (to the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, or any other matter in which the interests of Sellers and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), on the other hand, are adverse, arises after the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing or the Second Closing Acquired Entities after the Second Closing, on the one hand, and the Sellers and their respective Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially extent solely related to such disputeengagement, the “Acquisition Engagement”).
(b) The Sellers Only Seller shall be considered a client of JDSPC and Buyer and their respective Affiliates, including K&E with respect to the First Closing Acquired Entities Acquisition Engagement. All communications between Seller and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-client privilege, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel JDSPC and/or K&E in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject Acquisition Engagement shall be deemed to be attorney-client privilege, attorney work product protection, of confidences that belong solely to Seller Counsel’s duty of confidentialityand not the Acquired Companies. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller CounselJDSPC or K&E relating to the Acquisition Engagement, whether or not any Applicable the Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable the Closing, (Ai) Seller and JDSPC and/or K&E shall be the sole holders of the attorney-client privilege with respect to the Acquisition Engagement, and neither the Acquired Companies nor Buyer shall be a holder thereof, (ii) to the extent that files of Seller Counsel JDSPC or K&E in respect of the Acquisition Engagement constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) Seller shall hold such property rights, rights and (Biii) Seller Counsel neither JDSPC nor K&E shall have no any duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities Companies or the Second Closing Acquired Entities Buyer by reason of any attorney-client relationship between Seller Counsel JDSPC or K&E and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) Companies or otherwise.
(c) If Seller so desires, and without the need for any consent or waiver by Seller or Buyer, JDSPC and/or K&E shall be permitted to represent Seller or its Representatives after the Closing in connection with any matter, including anything related to the extenttransactions contemplated by this Agreement or any disagreement or dispute relating thereto. Without limiting the generality of the foregoing, at any time subsequent to each Applicable after the Closing, Buyer JDSPC and K&E shall be permitted to represent Seller any of their Representatives and Affiliates, or any one or more of them, in connection with any matter whatsoever, including any negotiation, transaction or dispute (“dispute” includes litigation, arbitration, mediation, negotiation or other adversary proceeding) with Buyer, the Acquired Companies or any of its their Representatives or Affiliates (including under or relating to this Agreement, any transaction contemplated by this Agreement if such matter is related to the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayedAcquisition Engagement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Cronos Group Inc.)
Legal Representation. (a) It is acknowledged by each dMY and the Company, on behalf of their respective successors and assigns (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectivelySurviving Corporation), “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that any dispute, a dispute with respect to this Agreement or any the transactions contemplated hereby arises after the Closing between or among (i) the stockholders or holders of other matter in which the equity interests of Sellers the Company and any of their respective Affiliatesdirectors, members, partners, officers, employees or affiliates (other than the Surviving Corporation) (collectively, the “Company Group”), on the one hand, and Buyer and its Affiliates (including y) the First Closing Acquired Entities after Surviving Corporation or any member of the First Closing and the Second Closing Acquired Entities after the Second Closing)Company Group, on the other hand, are adverseany legal counsel, arises including Xxxxxx LLP (“Cooley”), that represented the Company prior to the Closing may represent any member of the Company Group in such dispute even though the interests of such persons may be directly adverse to the Surviving Corporation, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Corporation. dMY and the Company, on behalf of their respective successors and assigns (including, after the Applicable Closing between BuyerClosing, the First Surviving Corporation) further agree that, as to all legally privileged communications prior to the Closing Acquired Entities after made in connection with the First Closing negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement, any Ancillary Agreements or the Second Closing Acquired Entities after transactions contemplated hereby or thereby between or among the Second ClosingCompany or any member of the Company Group, on the one hand, and the Sellers and their respective AffiliatesCooley, on the other hand, Seller Counsel may represent any or all of the Sellers and their Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(b) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, the attorney-/client privilege, attorney work product protection privilege and the expectation of client confidence belongs solely shall survive the Merger and belong to the Sellers or their Affiliates (other than the First Closing Acquired Entities Company Group after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed or controlled by Buyerthe Surviving Corporation. Notwithstanding the foregoing, any privileged communications or information shared by dMY prior to the First Closing Acquired Entities with the Company under a common interest agreement shall be and remain the privileged communications or information of the Company Group, and not dMY.
(b) dMY and the Company, on behalf of their respective successors and assigns (including, after the First Closing, the Second Closing Acquired Entities Surviving Corporation), hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Second ClosingClosing between or among (i) the Sponsor, the stockholders or holders of other equity interests of dMY or the Sponsor or any of their respective Affiliatesdirectors, members, partners, officers, employees or affiliates (other than the Surviving Corporation) (collectively, the “dMY Group”), on the one hand, and (ii) Seller Counsel may disclose the Surviving Corporation or any member of the Company Group, on the other hand, any legal counsel, including Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP (“Xxxxxx”), that represented dMY or the Sponsor prior to the Sellers Closing may represent the Sponsor or their respective Affiliates any information learned by Seller Counsel in the course of its representation other member of the SellersdMY Group, in such dispute even though the interests of such persons may be directly adverse to dMY, the First Closing Acquired EntitiesSurviving Corporation, and even though such counsel may have represented dMY in a matter substantially related to such dispute, or may be handling ongoing matters for dMY, the Second Closing Acquired Entities Surviving Corporation or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentialitythe Sponsor. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing dMY and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, BuyerCompany, on behalf of itself their respective successors and its Affiliates assigns (including the First Closing Acquired Entities including, after the First Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Closing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement, any Ancillary Agreements or the transactions contemplated hereby or thereby between or among dMY, the Sponsor or any other member of the dMY Group, on the one hand, and Xxxxxx, on the other hand, the attorney/client privilege and the Second Closing Acquired Entities expectation of client confidence shall survive the Mergers and belong to the dMY Group after the Second Closing), and shall not pass to or be entitled claimed or controlled by dMY following the Closing, the Surviving Corporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to waive such privilege only the Closing with dMY or the consent Sponsor under a common interest agreement shall remain the privileged communications or information of the SellersSurviving Corporation, and not to be unreasonably withheld, conditioned or delayedthe dMY Group.
Appears in 1 contract
Legal Representation. (a) It is acknowledged by each The Buyer, on behalf of itself and its Affiliates (including, after the Parties that the First Closing Acquired EntitiesClosing, the Second Closing Acquired Entities Company and the Sellers have retained Xxxxxx & Xxxxxxx Company Subsidiaries), acknowledges and agrees that Xxxx Xxxxx LLP (collectively, “Seller CounselXxxx Xxxxx”) to act has acted as their counsel for the Seller, the Company and the Company Subsidiaries in connection with this Agreement and the Transactionstransactions contemplated hereby (the “Acquisition Engagement”), and that Seller Counsel in connection with this Agreement and the transactions contemplated hereby, Xxxx Xxxxx has not acted as counsel for any other Party in connection with Person, including the TransactionsBuyer.
(b) The parties acknowledge and agree that only the Seller, the Company and that none their respective Affiliates shall be considered clients of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, Xxxx Xxxxx in the event that any disputeAcquisition Engagement and all confidential communications between the Seller, or any other matter in which the interests of Sellers Company and their respective Affiliates, on the one hand, and Buyer and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing)Xxxx Xxxxx, on the other hand, are adversethat relate exclusively to the negotiation, documentation and consummation of the Acquisition Engagement or any dispute arising thereunder (“Privileged Communications”) shall be deemed attorney-client privileged. In the event that a dispute arises after between (i) the Applicable Closing between Buyer, the First Closing Acquired Entities after the First Closing Buyer or the Second Closing Acquired Entities after Company or any of the Second ClosingCompany Subsidiaries, on the one hand, and a third party other than the Sellers and their respective Seller or its Affiliates, on the other hand, Seller Counsel may represent any or all of the Sellers Company shall (and their shall cause its Affiliates in such dispute, even though the interests of the Sellers and their Affiliates may be directly adverse to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or the Second Closing Acquired Entities in any matter substantially related to such dispute.
(bto) The Sellers and Buyer and their respective Affiliates, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and agree that, in connection with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between extent requested by Seller (after notice by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of its or their respective Affiliates, on the one hand, and the Sellers or any of their respective Affiliates, on the other hand, or with or between any other Persons, with respect ) assert to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliates, extent available the attorney-client privilege, attorney work product protection privilege to prevent disclosure of the Privileged Communications to such third party and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers or their respective Affiliates any information learned by Seller Counsel in the course of its representation of the Sellers, the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to any such communications, or to the files of Seller Counsel, whether or not any Applicable Closing occurs. Without limiting the generality of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwise.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing Closing, the Company and the Second Closing Acquired Entities after the Second ClosingCompany Subsidiaries), shall be entitled to waive such privilege only with the prior written consent of the Sellers, Seller (such consent not to be unreasonably withheld) or (ii) the Seller or its Affiliates (excluding after the Closing, conditioned the Company and the Company Subsidiaries), on the one hand, and a third party other than the Buyer or delayedits Affiliates, on the other hand, the Seller shall (and shall cause its Affiliates to) to the extent requested by Buyer (after notice by Seller) assert to the extent available the attorney-client privilege to prevent disclosure of the Privileged Communications to such third party and the Seller, on behalf of itself and its Affiliates (excluding after the Closing, the Company and the Company Subsidiaries), shall be entitled to waive such privilege only with the prior written consent of the Company (such consent not to be unreasonably withheld).
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company and the Company Subsidiaries), acknowledges and agrees that Xxxx Xxxxx is acting as counsel for the Seller, the Company and their respective Affiliates and that the Seller reasonably anticipates that Xxxx Xxxxx will continue to represent Seller or its Affiliates in future matters. Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company and the Company Subsidiaries), expressly consents to Xxxx Xxxxx’x representation of the Seller or its respective Affiliates in any matter, including any matter arising after the Closing, in which the interests of the Buyer and the Company, on the one hand, and the Seller or its Affiliates, on the other hand, are adverse, including any matter relating to the transactions contemplated by this Agreement or any dispute or disagreement relating thereto, and whether or not such matter is one in which Xxxx Xxxxx may have previously advised the Seller, the Company or their respective Affiliates.
(d) Upon and after the Closing, the Company and the Company Subsidiaries shall cease to have any attorney-client relationship with Xxxx Xxxxx, unless and to the extent Xxxx Xxxxx is expressly engaged in writing by the Company or the Company Subsidiaries to represent the Company or the Company Subsidiaries after the Closing and either (i) such engagement involves no conflict of interest with respect to the Seller or any of its Affiliates or (ii) the Seller or any of its Affiliates, as applicable, consent in writing to such engagement. Any such representation of the Company by Xxxx Xxxxx after the Closing shall not affect the foregoing provisions hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Wanda Sports Group Co LTD)
Legal Representation. (a) It is acknowledged by each The Parties, on behalf of the Parties that the First Closing Acquired Entitiestheir respective successors and assigns, the Second Closing Acquired Entities and the Sellers have retained Xxxxxx & Xxxxxxx LLP (collectively, “Seller Counsel”) to act as their counsel in connection with the Transactions, and that Seller Counsel has not acted as counsel for any other Party in connection with the Transactions, and that none of the other Parties has the status of a client of Seller Counsel for conflict of interest or any other purposes as a result thereof. The Sellers and Buyer hereby agree that, in the event that a dispute with respect to this Agreement, the Ancillary Agreements or the Transactions arises after the Closing between or among (x) DV Entities and any dispute, of their respective shareholders or any holders of other matter in which the equity interests of Sellers and their respective AffiliatesDV Entities, directors, members, partners, officers, employees or Affiliates (collectively, the “DV Group”), on the one hand, and Buyer and its (y) Goal, the Sponsor, the shareholders or holders of other equity interests of Goal or the Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (including collectively, the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing“Goal Group”), on the other hand, are adverseany legal counsel, arises after including Pxxxxxx Xxxxxxx Marpeau & Associés and Winston & Sxxxxx LLP, that represented DV and certain members of the Applicable DV Group prior to the Closing between Buyermay represent any member of the DV Group in such dispute even though the interests of such Persons may be directly adverse to Goal, and even though such counsel may have represented DV in a matter substantially related to such dispute, or may be handling ongoing matters for DV, and further agree that, as to all legally privileged communications prior to the First Closing Acquired Entities after (made in connection with the First Closing negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the Second Closing Acquired Entities after Transactions) between or among DV and/or any member of the Second ClosingDV Group, on the one hand, and Pxxxxxx Xxxxxxx Marpeau & Associés and Winston & Sxxxxx LLP, on the Sellers other hand (the “Pxxxxxx & Wxxxxxx Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the DV Group after the Closing. Notwithstanding the foregoing, any privileged communications or information shared by DV prior to the Closing with Goal under a common interest agreement shall remain the privileged communications or information of DV. The Parties, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on the other hand, Seller Counsel may represent any or all of the Sellers and Pxxxxxx & Wxxxxxx Privileged Communications, whether located in the records or email server of Goal, DV or their Affiliates respective Subsidiaries, in such dispute, even though the interests any Action against or involving any of the Sellers and their Affiliates may be directly adverse to Buyer, Parties after the First Closing Acquired Entities or the Second Closing Acquired EntitiesClosing, and even though Seller Counsel formerly may have represented the First Closing Acquired Entities or Parties agree not to assert that any privilege has been waived as to the Second Closing Acquired Entities in any matter substantially related to such disputePxxxxxx & Wxxxxxx Privileged Communications, by virtue of the Transactions.
(b) The Sellers and Buyer and Parties, on behalf of their respective Affiliatessuccessors and assigns, including with respect to the First Closing Acquired Entities and the Second Closing Acquired Entities, acknowledge and hereby agree that, in connection the event a dispute with any future disputes, lawsuits, actions, proceedings, investigations or other matters, including any dispute between Buyerrespect to this Agreement, the First Closing Acquired Entities Ancillary Agreements or the Transactions arises after the First Closing, Closing between or among (x) any member of the Second Closing Acquired Entities after the Second Closing, or any of its or their respective AffiliatesDV Group, on the one hand, and (y) any member of the Sellers Goal Group, on the other hand, any legal counsel, including Proskauer Rose LLP and Bxxxxxxxxx Hxxxx Fxxxxx Sxxxxxx, LLP, that represented Goal and the Sponsor prior to the Closing may represent any member of the Goal Group in such dispute even though the interests of such Persons may be directly adverse to DV, and even though such counsel may have represented Goal in a matter substantially related to such dispute, or may be handling ongoing matters for Goal, and further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the Transactions) between or among Goal and/or any member of the Goal Group, on the one hand, and Proskauer Rose LLP or Bxxxxxxxxx Hxxxx Fxxxxx Sxxxxxx, LLP, on the other hand (the “Proskauer & Brownstein Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the Goal Group after the Closing. Notwithstanding the foregoing, any privileged communications or information shared by Goal prior to the Closing with DV under a common interest agreement shall remain the privileged communications or information of Goal. The Parties, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on the other hand, or with or between any other Persons, with respect to the Transactions, (i) as to all communications among Seller Counsel, the First Closing Acquired Entities (with respect to communications prior to the First Closing), the Second Closing Acquired Entities (with respect to communications prior to the Second Closing), the Sellers or any of their respective Affiliatesthe Proskauer & Brownstein Privileged Communications, whether located in the attorney-client privilegerecords or email server of Goal, attorney work product protection and the expectation of client confidence belongs solely to the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and may be controlled by the Sellers or their Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), and shall not pass to or be claimed by Buyer, the First Closing Acquired Entities after the First Closing, the Second Closing Acquired Entities after the Second Closing, or any of their respective Affiliates, and (ii) Seller Counsel may disclose to the Sellers DV or their respective Affiliates Subsidiaries, in any information learned by Seller Counsel in the course of its representation Action against or involving any of the Sellersparties after the Closing, and the First Closing Acquired Entities, the Second Closing Acquired Entities or their respective Affiliates, whether or Parties agree not such information is subject to attorney-client privilege, attorney work product protection, of Seller Counsel’s duty of confidentiality. Accordingly, Buyer and its Affiliates shall not have access to assert that any such communications, or privilege has been waived as to the files of Seller CounselProskauer & Brownstein Privileged Communications, whether or not any Applicable Closing occurs. Without limiting the generality by virtue of the foregoing, upon and after each Applicable Closing, (A) to the extent that files of Seller Counsel constitute property of the client, only the Sellers and their respective Affiliates (other than the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall hold such property rights, and (B) Seller Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer, the First Closing Acquired Entities or the Second Closing Acquired Entities by reason of any attorney-client relationship between Seller Counsel and the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or otherwiseTransactions.
(c) If and to the extent, at any time subsequent to each Applicable Closing, Buyer or any of its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing) shall have the right to assert or waive any attorney-client privilege with respect to any communication between the First Closing Acquired Entities and the Second Closing Acquired Entities (as applicable) or their respective Affiliates, and any Person representing them, that occurred at any time prior to such Applicable Closing, Buyer, on behalf of itself and its Affiliates (including the First Closing Acquired Entities after the First Closing and the Second Closing Acquired Entities after the Second Closing), shall be entitled to waive such privilege only with the consent of the Sellers, not to be unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Business Combination Agreement (Goal Acquisitions Corp.)
