Privilege. (a) Each of the Parties acknowledges and agrees that ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇ ▇▇▇▇▇▇▇▇”) has acted as counsel to Seller and its Affiliates in connection with the negotiation of this Agreement and any consummation of the Transactions. (b) Each of Parent and Buyer consents and agrees to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller and its Affiliates after the Closing, including with respect to disputes in which the interests of Seller and its Affiliates may be directly adverse to Parent or Buyer and their respective Affiliates, and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented Company or Company Subsidiary in a matter substantially related to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates in connection with any such representation of any fact known to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its Affiliates, Company or Company Subsidiary. (c) In connection with the foregoing, each of Parent and Buyer irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Company or Company Subsidiary and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and after the Closing. (d) Each of Parent and Buyer further agrees that all communications in any form or format whatsoever between or among any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Company, Company Subsidiary, any of Seller or its Affiliates, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Deal Communications”) shall be deemed to be retained, owned and controlled collectively by Seller and shall not pass to or be claimed by Parent or Buyer. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to, and be controlled solely by, Seller and shall not pass to or be claimed by Parent or Buyer. (e) In the event that a dispute arises between Parent or Buyer and a third party, Parent or Buyer, as applicable, may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such third party; provided, however, that none of Parent, Buyer, Company nor Company Subsidiary may waive such privilege without the prior written consent of Seller. In the event that Parent or Buyer, as applicable, is legally required by Order or otherwise to access or obtain a copy of all or a portion of the Deal Communications, Parent or Buyer, as applicable, shall immediately (and, in any event, within three (3) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective Order, and Parent and Buyer, as applicable, agree to use all commercially reasonable efforts to assist therewith. (f) To the extent that files or other materials maintained by ▇▇▇▇ ▇▇▇▇▇▇▇▇ constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Deal Communications by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇, on the one hand, and Buyer or Parent, on the other hand. (g) Each of Parent and Buyer agrees that it will not (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Seller or any other Person waive the attorney-client or other privilege, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇. In furtherance of the foregoing, it shall not be a breach of any provision of this Agreement if, prior to the Closing, Seller, Company, Company Subsidiary or any of their respective Affiliates or Representatives take any action to protect from access or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good-faith attempts by Seller or any of its or its Affiliates’ respective Representatives to achieve a Permitted Removal of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent and Buyer agrees that it will not, and that it will cause its Affiliates and Representatives not to, intentionally use or attempt to use any means to access, retrieve, restore, recreate, unarchive or otherwise gain access to or view any Residual Communication for any purpose.
Appears in 2 contracts
Sources: Stock Purchase Agreement (General Electric Co), Stock Purchase Agreement (Neogenomics Inc)
Privilege. (a) Each of the Parties acknowledges and agrees that ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP With respect to any attorney-client privilege or work product protection (collectively, “▇▇▇▇ ▇▇▇▇▇▇▇▇Privileges”) has acted as counsel relating to Seller and its Affiliates in connection with (i) the negotiation of this Agreement and any consummation of Business, the Transactions.
(b) Each of Parent and Buyer consents and agrees Purchased Assets, the Assumed Liabilities or Transferred Liabilities related to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller and its Affiliates after communications or work product occurring or created on or prior to the Closing, including with respect to disputes in which the interests of Seller and its Affiliates may be directly adverse to Parent (ii) all business, previously or Buyer and their respective Affiliates, and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented Company or Company Subsidiary in a matter substantially related to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication hereafter conducted by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates in connection with any such representation of any fact known to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its Affiliates, Company including with respect to the Excluded Assets or Company Subsidiary.
the Retained Liabilities or Excluded Liabilities, or (ciii) In all business records, documents, communications or other information (collectively, “Information”) of Seller or any of their respective Affiliates prepared in connection with this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby, Seller will have sole authority to determine whether to assert or waive any such Privileges, including the right to assert any such Privilege against Buyer and its Affiliates. Buyer and its Affiliates shall take no action without the prior written consent of Seller that would reasonably be expected to result in any waiver of any such Privileges. Subject to the foregoing, each of Parent and after the Closing, Buyer irrevocably waives and agrees not will have sole authority to determine whether to assert or waive any conflict of interest arising from Privileges with respect to matters relating to the Business, the Purchased Assets, the Assumed Liabilities or in connection with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Company the Transferred Liabilities related to communications or Company Subsidiary work product occurring or created after the Closing, and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and shall take no action after the ClosingClosing without the prior written consent of Buyer that would reasonably be expected to result in any waiver of any such Privileges of Buyer.
(db) Each The rights and obligations created by this Section 5.9 will apply to all Information as to which Seller or its Affiliates would be entitled to assert or have asserted a Privilege without regard to the effect, if any, of Parent and Buyer further agrees that all communications in any form or format whatsoever between or among any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Company, Company Subsidiary, any of the transactions contemplated hereby (the “Privileged Information”). Upon receipt by Seller or its Affiliates, or Buyer or its Affiliates of, or any such Person becomes aware that a current or former employee of their respective Representatives such Person has received, any subpoena, discovery or other request from any Person that relate actually or arguably calls for the production or disclosure of Privileged Information of one or more of the other Parties, Buyer or Seller, as the case may be, shall promptly notify the other Party of the existence of the request and shall provide such other Party a reasonable opportunity to review the Privileged Information and to assert any rights it may have under this Section 5.9 or otherwise to prevent the production or disclosure of any such Privileged Information. Seller’s transfer of any Information to Buyer in any way accordance with this Agreement and Seller’s agreement to permit Buyer to obtain Information existing prior to the negotiation, documentation and consummation of the Transactions, beginning Closing are made in reliance on the date Parties’ respective agreements to maintain the confidentiality of this Agreement, any dispute arising under this Agreement (collectively, such Information and to take the “Deal Communications”) shall be deemed to be retained, owned and controlled collectively by Seller and shall not pass steps provided herein for the preservation of all Privileges that may belong to or be claimed asserted by Parent or Buyer. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to, and be controlled solely by, Seller and shall not pass to or be claimed by Parent or Buyer.
(e) In the event that a dispute arises between Parent or Buyer and a third party, Parent or Buyer, as applicablethe case may be, may assert the attorney-client privilege as set forth in this Section 5.9. The access to prevent Information being granted pursuant to this Agreement, including Sections 5.2 and 5.8, and the disclosure to Buyer or Seller of Privileged Information pursuant to this Agreement or in connection with the Privileged Deal Communications transactions contemplated hereby will not be asserted by Buyer or Seller to such third party; providedconstitute, however, that none of Parent, Buyer, Company nor Company Subsidiary may waive such privilege without the prior written consent of Seller. In the event that Parent or Buyer, as applicable, is legally required by Order or otherwise to access or obtain be deemed, a copy of all or a portion of the Deal Communications, Parent or Buyer, as applicable, shall immediately (and, in any event, within three (3) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective Order, and Parent and Buyer, as applicable, agree to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by ▇▇▇▇ ▇▇▇▇▇▇▇▇ constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Deal Communications by reason waiver of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇, on the one hand, and Buyer Privilege that has been or Parent, on the other handmay be asserted under this Section 5.9 or otherwise.
(g) Each of Parent and Buyer agrees that it will not (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Seller or any other Person waive the attorney-client or other privilege, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇. In furtherance of the foregoing, it shall not be a breach of any provision of this Agreement if, prior to the Closing, Seller, Company, Company Subsidiary or any of their respective Affiliates or Representatives take any action to protect from access or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good-faith attempts by Seller or any of its or its Affiliates’ respective Representatives to achieve a Permitted Removal of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent and Buyer agrees that it will not, and that it will cause its Affiliates and Representatives not to, intentionally use or attempt to use any means to access, retrieve, restore, recreate, unarchive or otherwise gain access to or view any Residual Communication for any purpose.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOISE CASCADE Co), Asset Purchase Agreement (BOISE CASCADE Co)
Privilege. (a) Each of the Parties acknowledges and agrees that ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇ ▇▇▇▇▇▇▇▇”) has acted as counsel to Seller and its Affiliates in connection with the negotiation of this Agreement and any consummation of the Transactions.
(b) Each of Parent and Buyer consents and agrees to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller and its Affiliates after the Closing, including with respect to disputes in which the interests of Seller and its Affiliates may be directly adverse to Parent or Buyer and their respective Affiliates, and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented The Company or Company Subsidiary in a matter substantially related to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates in connection with any such representation of any fact known to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its Affiliates, Company or Company Subsidiary.
(c) In connection with the foregoing, each of Parent and Buyer irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Company or Company Subsidiary and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and after the Closing.
(d) Each of Parent and Buyer further hereby agrees that all privileged communications in any form or format whatsoever between or among any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Company, Company SubsidiaryMetLife, any other member of Seller or its Affiliatesthe MetLife Group, any member of the Company Group, or any of their respective Representatives officers, directors, employees, agents or representatives and their counsel (whether internal or outside), that relate in any way to the negotiation, documentation and consummation of the Transactions, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, and the “Deal Communications”) shall be deemed to be retained, owned and controlled collectively by Seller and shall not pass to or be claimed by Parent or Buyer. All Deal Communications that are attorney-client privileged documents set forth on Schedule 4.6 (the “Privileged Deal Transaction Communications”) shall remain privileged after the Closing Separation Date, and that the Transaction Communications, any privilege attaching thereto, and the expectation of client confidence relating thereto shall belong solely toto MetLife or the other members of the MetLife Group or their employees, as applicable, and be controlled solely bynot the Company or any other members of the Company Group or their employees, Seller and shall not pass to or be claimed by Parent the Company or Buyer.
(e) In the event that a dispute arises between Parent or Buyer and a third party, Parent or Buyer, as applicable, may assert the attorney-client privilege to prevent the disclosure any other members of the Privileged Deal Communications Company Group or their employees, except that with respect to such third party; provided, however, that none of Parent, Buyer, communications prior to the Separation Date solely between the Company nor Company Subsidiary may waive such privilege without the prior written consent of Seller. In the event that Parent or Buyer, as applicable, is legally required by Order or otherwise to access or obtain a copy of all or a portion any other member of the Deal CommunicationsCompany Group, Parent or Buyer, as applicable, shall immediately (and, in any event, within three (3) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective Orderon the one hand, and Parent and Buyer, as applicable, agree to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by ▇▇▇▇ Debevoise & ▇▇▇▇▇▇▇▇ constitute property of its clientsLLP, only Seller shall hold such property rights and Ropes & ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have no duty to reveal LLP or disclose any such files or other materials or any Deal Communications by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇, on Sidley Austin LLP (the one hand, and Buyer or Parent“Counsel Communications”), on the other hand.
(g) Each , any privilege attaching thereto, and the expectation of Parent client confidence relating thereto, shall belong jointly to MetLife or the other members of the MetLife Group or their employees, as applicable, and Buyer agrees that it will not (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Seller Company or any other Person waive members of the attorney-client Company Group or other privilegetheir employees, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇as applicable. In furtherance addition, the Company agrees that the transfer of the foregoing, it shall not be a breach of any provision of this Agreement if, prior to the Closing, Seller, Company, Company Subsidiary or any of their respective Affiliates or Representatives take any action to protect from access or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including Assets by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good-faith attempts by Seller MetLife or any of its Affiliates to the Company under this Agreement, the Distribution, or any associated or affiliated transactions contemplated thereby or preliminary thereto, shall not constitute, and the Company (on behalf of itself and its Affiliates’ respective Representatives ) agrees not to achieve assert that such transfer constitutes, a Permitted Removal waiver of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible privilege attaching to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent and Buyer the Transaction Communications. The Company agrees that it will not, and will cause each of its Affiliates not to, assert or use any Transaction Communications (including, without limitation, any Counsel Communications) in its or their possession after the Separation Date for the purpose of asserting, prosecuting, or litigating any claim against MetLife or any of its Affiliates or otherwise in a manner adverse to MetLife or any of its Affiliates. From and after the Separation Date, upon any legal personnel, manager or executive officer of the Company or any of its Affiliates becoming aware of the existence of Transaction Communications in the possession of the Company or any of its Affiliates that such Person knows or reasonably should know to be Transaction Communications or, if any time after the Separation Date, upon the request of MetLife upon discovering that specified Transaction Communications are in the possession of the Company or any of its Affiliates after Separation, the Company hereby agrees to, and to cause its Affiliates to, reasonably promptly notify, and thereafter reasonably promptly (unless a request for specific Transaction Communications is made by MetLife, in which case, the Company shall promptly identify, and, once identified, immediately) return to MetLife or destroy (at MetLife’s option) such Transaction Communications. The Company and its Affiliates acknowledge and agree that any Transaction Communications that are known to be Transaction Communications (other than Transaction Communications that are also Counsel Communications) shall not be used for any purpose and shall be maintained separately from the Company’s records and kept strictly confidential. Upon notification by MetLife that any specified materials constitute Transaction Communications, the Company and its Affiliates shall, as soon as commercially practicable and at MetLife’s expense, return to MetLife or destroy (at MetLife’s option) such Transaction Communications as provided for herein. The obligation to return or destroy Transaction Communications set forth in this paragraph shall not apply to Transaction Communications that are also Counsel Communications, as to which the Company and its Affiliates shall take all action appropriate to maintain the joint privilege.
(b) The Company hereby agrees that all privileged communications (other than any Transaction Communications) in any form or format whatsoever between or among MetLife, any other member of the MetLife Group, any member of the Company Group, or any of their respective officers, directors, employees, agents or representatives and their counsel (whether internal or outside), including any Counsel Communications, that relate to the negotiation, documentation and consummation of this Agreement, the Distribution, or any associated or affiliated transactions contemplated thereby or preliminary thereto, including agreements related thereto not set forth on Schedule 4.6 (the “Joint Privileged Communications”) shall remain privileged after the Separation Date, and any privilege attaching thereto, and the expectation of client confidence relating thereto shall belong jointly to MetLife or the other members of the MetLife Group or their employees, as applicable, and the Company or any other members of the Company Group or their employees, as applicable. The Company agrees that it will not, and will cause each of its Affiliates and Representatives not to, intentionally use assert or attempt to use any means Joint Privilege Communications or, to accessthe extent applicable, retrievethe Transaction Communications for the purpose of asserting, restoreprosecuting, recreate, unarchive or litigating any claim against MetLife or any of its Affiliates or otherwise gain access in a manner adverse to MetLife or view any Residual Communication for any purposeof its Affiliates.
Appears in 2 contracts
Sources: Master Separation Agreement, Master Separation Agreement (Metlife Inc)
Privilege. (a) Each Party, on behalf of the Parties itself and its Affiliates, acknowledges and agrees that D▇▇▇▇ ▇▇▇▇▇▇ & S▇▇▇▇▇ LLP (“▇▇▇▇ ▇▇▇▇▇▇▇▇Seller Counsel”) has acted as counsel to Seller for Sellers and its Affiliates the Company in connection with this Agreement and the transactions contemplated hereby (the “Sale Engagement”) and, in connection with the negotiation Sale Engagement, Seller Counsel has not acted as counsel for any other Person. Buyer, on behalf of this Agreement and any consummation of the Transactions.
(b) Each of Parent and Buyer consents and agrees to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller itself and its Affiliates (including, after the Closing, including with respect to disputes in which the interests of Seller Company), acknowledges and its Affiliates may be directly adverse to Parent or Buyer agrees that all confidential communications between Sellers, the Company and their respective Affiliates, on the one hand, and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented Company or Company Subsidiary Seller Counsel, on the other hand, in a matter substantially related to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates in connection with any such representation of any fact known to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its Affiliates, Company or Company Subsidiary.
(c) In connection with the foregoing, each of Parent and Buyer irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Company or Company Subsidiary and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and after the Closing.
(d) Each of Parent and Buyer further agrees that all communications in any form or format whatsoever between or among any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Company, Company Subsidiary, any of Seller or its Affiliates, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation course of the TransactionsSale Engagement, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Deal Communications”) shall be deemed to be retained, owned and controlled collectively by Seller and shall not pass to or be claimed by Parent or Buyer. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall be deemed to belong solely toto Seller and its Affiliates (other than the Company), and be controlled solely bynot the Company, Seller and shall not pass to or be claimed claimed, held, or used by Parent Buyer or Buyer.
the Company upon or after the Closing. Accordingly, neither Buyer nor the Company shall have the right to access the Privileged Communications, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (ea) In to the event that a dispute arises extent the Privileged Communications constitute property of the client, only Seller shall hold such property rights and (b) Seller Counsel shall have no duty whatsoever to reveal or disclose any such Privileged Communications to Buyer or the Company by reason of any actual or alleged attorney-client relationship between Parent Seller Counsel and the Company or otherwise. If and to the extent that, at any time subsequent to Closing, Buyer and a third partyor any of its Affiliates (including after the Closing, Parent the Company) shall have the right to assert or Buyer, as applicable, may assert the waive any attorney-client privilege with respect to prevent the disclosure of the Privileged Deal Communications to such third party; provided, however, that none of ParentCommunications, Buyer, Company nor Company Subsidiary may on behalf of itself and its Affiliates (including after the Closing, the Company), shall be entitled to waive such privilege without only with the prior written consent of Sellerthe Seller Representative (such consent not to be unreasonably withheld, conditioned or delayed). In the event that Parent Buyer or Buyer, as applicable, any of its Affiliates is legally required or requested by Order or otherwise any Governmental Entity to access or obtain a copy of all or a portion of the Deal Privileged Communications, Parent Buyer shall be entitled to access or Buyer, as applicable, obtain a copy of and disclose the Privileged Communications to the extent necessary to comply with any such legal requirement or request; provided that Buyer shall immediately (and, in any event, within three (3) Business Days) promptly notify the Seller Representative in writing (including prior to the disclosure by making specific reference Buyer of any Privileged Communications to this Sectionthe extent practicable) so that Seller Sellers can seek a protective Order, order and Parent and Buyer, as applicable, agree B▇▇▇▇ agrees to use all commercially reasonable best efforts (at the sole cost and expense of Sellers) to assist therewith.
(f) To the extent that files or other materials maintained by ▇▇▇▇ ▇▇▇▇▇▇▇▇ constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Deal Communications by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇, on the one hand, and Buyer or Parent, on the other hand.
(g) Each of Parent and Buyer agrees that it will not (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Seller or any other Person waive the attorney-client or other privilege, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇. In furtherance of the foregoing, it shall not be a breach of any provision of this Agreement if, prior to the Closing, Seller, Company, Company Subsidiary or any of their respective Affiliates or Representatives take any action to protect from access or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good-faith attempts by Seller or any of its or its Affiliates’ respective Representatives to achieve a Permitted Removal of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent and Buyer agrees that it will not, and that it will cause its Affiliates and Representatives not to, intentionally use or attempt to use any means to access, retrieve, restore, recreate, unarchive or otherwise gain access to or view any Residual Communication for any purpose.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Riot Blockchain, Inc.)
Privilege. (a) Each of Recognizing that the Parties acknowledges and agrees that ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP Company has legal counsel (“▇▇▇▇ ▇▇▇▇▇▇▇▇Company Counsel”) has acted ), and that Company Counsel may act as legal counsel to a Seller and its Affiliates in connection with the negotiation of this Agreement and any consummation of the Transactions.
(b) Each of Parent and Buyer consents and agrees to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller and its Affiliates after the Closing, including with respect to disputes in which the interests of Seller and its Affiliates Company hereby waives any conflicts that may be directly adverse to Parent or Buyer and their respective Affiliates, and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented Company or Company Subsidiary in a matter substantially related to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates arise in connection with any Company Counsel representing Sellers or their Affiliates after the Closing as such representation of any fact known may relate to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising Purchaser and/or the Company, or the transactions contemplated by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its this Agreement and the Transaction Documents. In addition, all communications involving attorney-client confidences between the Company and their Affiliates, on the one hand, and Company or Company Subsidiary.
(c) In connection with Counsel, on the foregoingother hand, each of Parent and Buyer irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Company or Company Subsidiary and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and after the Closing.
(d) Each of Parent and Buyer further agrees that all communications in any form or format whatsoever between or among any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Company, Company Subsidiary, any of Seller or its Affiliates, or any of their respective Representatives that relate in any way relating to the negotiation, documentation and consummation of the Transactions, beginning on the date of this Agreement, any dispute arising under transactions contemplated by this Agreement (collectively, and the “Deal Communications”) Transaction Documents shall be deemed to be retained, owned and controlled collectively by Seller and shall not pass to or be claimed by Parent or Buyer. All Deal Communications that are attorney-client privileged confidences that belong solely to Sellers and their Affiliates (and not Purchaser or the “Privileged Deal Communications”) Company or their respective Affiliates). Accordingly, Purchaser and the Company shall remain privileged not have access to any such communications or to the files of Company Counsel relating to such engagement from and after the Closing Date and such files shall be segregated from Company Counsel’s files related to all other elements of its representation of the privilege Company prior to the Closing (which shall remain the property of the Company). Without limiting the generality of the foregoing, from and after the expectation Closing Date, (a) Sellers and their Affiliates (and not Purchaser or the Company) shall be the sole holders of client confidence relating thereto shall belong solely to, and be controlled solely by, Seller and shall not pass to or be claimed by Parent or Buyer.
(e) In the event that a dispute arises between Parent or Buyer and a third party, Parent or Buyer, as applicable, may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications with respect to such third party; providedengagement, however, that and none of ParentPurchaser or the Company shall be a holder thereof, Buyer, Company nor Company Subsidiary may waive such privilege without the prior written consent of Seller. In the event that Parent or Buyer, as applicable, is legally required by Order or otherwise (b) to access or obtain a copy of all or a portion of the Deal Communications, Parent or Buyer, as applicable, shall immediately (and, in any event, within three (3) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective Order, and Parent and Buyer, as applicable, agree to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by ▇▇▇▇ ▇▇▇▇▇▇▇▇ of Company Counsel in respect of such engagement constitute property of its clientsthe client, only Seller Sellers and their Affiliates (and not Purchaser or the Company) shall hold such property rights and ▇▇▇▇ ▇▇▇▇▇▇▇▇ (c) Company Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files or other materials or any Deal Communications to Purchaser the Company by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇Company Counsel and the Company or any of their Affiliates or otherwise. Notwithstanding the foregoing, (a) none of Purchaser or the Company nor any of their respective Affiliates is waiving any attorney-client privilege (including relating to the negotiation, documentation and consummation of the transactions contemplated by this Agreement and the Transaction Documents) in connection with any third-party action, suit, proceeding, claim, application, complaint or investigation; (b) the waivers contained in this Section 10.17 shall not extend to (i) any communication unrelated to this Agreement or the Transaction Documents, (ii) communications between the Stockholders or the Company, on the one hand, and Buyer or Parentany Person other than Counsel, on the other hand.
, (giii) Each of Parent any post-Closing communications between Company and Buyer agrees that it will not (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Seller Company Counsel or any other Person waive the attorney-client or other privilege, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇legal counsel. In furtherance The parties have executed this Agreement as of the foregoing, it shall not be a breach of any provision date indicated in the first sentence of this Agreement. ASPENTECH HOLDING CORPORATION By: ___________________________ Name: ________________________ Title: _________________________ MTELLIGENCE CORPORATION By: ___________________________ Name: ________________________ Title: _________________________ CITO CAPITAL CORPORATION By: ___________________________ Name: ________________________ Title: _________________________ Solely with respect to Section 6.9 ASPEN TECHNOLOGY, INC. By: ___________________________ Name: ________________________ Title: _________________________ The parties have executed this Agreement if, prior to as of the Closing, Seller, Company, Company Subsidiary or any date indicated in the first sentence of their respective Affiliates or Representatives take any action to protect from access or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications (any such action, a “Permitted Removal”)this Agreement. In the event that, notwithstanding any good-faith attempts by Seller or any of its or its Affiliates’ respective Representatives to achieve a Permitted Removal of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent and Buyer agrees that it will not, and that it will cause its Affiliates and Representatives not to, intentionally use or attempt to use any means to access, retrieve, restore, recreate, unarchive or otherwise gain access to or view any Residual Communication for any purpose.SELLERS By: ___________________________ Name: ________________________ Title: _________________________
Appears in 1 contract
Sources: Stock Purchase Agreement (Aspen Technology Inc /De/)
Privilege. (a) Each of the Parties acknowledges and agrees that ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇ ▇▇▇▇▇▇▇▇”) has acted as counsel to Seller and its Affiliates in connection with the negotiation of this Agreement and any consummation of the Transactions.
(b) Each of Parent and Buyer consents and agrees to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller and its Affiliates after the Closing, including with respect to disputes in which the interests of Seller and its Affiliates may be directly adverse to Parent or Buyer and their respective Affiliates, and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented The Company or Company Subsidiary in a matter substantially related to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates in connection with any such representation of any fact known to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its Affiliates, Company or Company Subsidiary.
(c) In connection with the foregoing, each of Parent and Buyer irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Company or Company Subsidiary and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and after the Closing.
(d) Each of Parent and Buyer further hereby agrees that all privileged communications in any form or format whatsoever between or among any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Company, Company SubsidiaryMetLife, any other member of Seller or its Affiliatesthe MetLife Group, any member of the Company Group, or any of their respective Representatives officers, directors, employees, agents or representatives and their counsel (whether internal or outside), that relate in any way to the negotiation, documentation and consummation of the Transactions, beginning on the date of this Agreement, the Distribution, or any dispute arising under this Agreement (collectively, the “Deal Communications”) shall be deemed to be retained, owned and controlled collectively by Seller and shall not pass to associated or be claimed by Parent affiliated transactions contemplated thereby or Buyer. All Deal Communications that are attorney-client privileged preliminary thereto (the “Privileged Deal Transaction Communications”) shall remain privileged after the Closing Separation Date, and that the Transaction Communications, any privilege attaching thereto, and the expectation of client confidence relating thereto shall belong solely toto MetLife or the other members of the MetLife Group or their employees, as applicable, and be controlled solely bynot the Company or any other members of the Company Group or their employees, Seller and shall not pass to or be claimed by Parent or Buyer.
(e) In the event that a dispute arises between Parent or Buyer and a third party, Parent or Buyer, as applicable, may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such third party; provided, however, that none of Parent, Buyer, Company nor Company Subsidiary may waive such privilege without the prior written consent of Seller. In the event that Parent or Buyer, as applicable, is legally required by Order or otherwise to access or obtain a copy of all or a portion of the Deal Communications, Parent or Buyer, as applicable, shall immediately (and, in any event, within three (3) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective Order, and Parent and Buyer, as applicable, agree to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by ▇▇▇▇ ▇▇▇▇▇▇▇▇ constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Deal Communications by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇, on the one hand, and Buyer or Parent, on the other hand.
(g) Each of Parent and Buyer agrees that it will not (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Seller or any other Person waive members of the attorney-client Company Group or other privilege, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇their employees. In furtherance addition, the Company agrees that the transfer of the foregoing, it shall not be a breach of any provision of this Agreement if, prior to the Closing, Seller, Company, Company Subsidiary or any of their respective Affiliates or Representatives take any action to protect from access or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including Assets by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good-faith attempts by Seller MetLife or any of its Affiliates to the Company under this Agreement, the Distribution, or any associated or affiliated transactions contemplated thereby or preliminary thereto, shall not constitute, and the Company (on behalf of itself and its Affiliates’ respective Representatives ) agrees not to achieve assert that such transfer constitutes, a Permitted Removal waiver of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible privilege attaching to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent and Buyer the Transaction Communications. The Company agrees that it will not, and will cause each of its Affiliates not to, use in a manner adverse to MetLife or any of its Affiliates any Transaction Communications that it will are in the possession of the Company or any of its Subsidiaries after Separation. From and after the Separation Date, upon any legal personnel, manager or executive officer of the Company or any of its Affiliates becoming aware of the existence of Transaction Communications in the possession of the Company or any of its Affiliates that such Person knows or reasonably should know to be Transaction Communications or, if any time after the Separation Date, upon the request of MetLife upon discovering that specified Transaction Communications are in the possession of the Company or any of its Affiliates after Separation, the Company hereby agrees to, and to cause its Affiliates and Representatives not to, intentionally use reasonably promptly notify, and thereafter reasonably promptly (unless a request for specific Transaction Communications is made by MetLife, in which case, the Company shall promptly identify, and, once identified, immediately) return to MetLife or attempt destroy (at MetLife’s option) such Transaction Communications. The Company and its Affiliates acknowledge and agree that any Transaction Communications that are known to be Transaction Communications shall not be used for any purpose and shall be maintained separately from the Company’s records and kept strictly confidential. Upon notification by MetLife that any specified materials constitute Transaction Communications, the Company and its Affiliates shall, as soon as commercially practicable, cease to use any means such Transaction Communications and, at MetLife’s expense, return to access, retrieve, restore, recreate, unarchive MetLife or otherwise gain access to or view any Residual Communication destroy (at MetLife’s option) such Transaction Communications as provided for any purposeherein.
Appears in 1 contract
Sources: Master Separation Agreement (Brighthouse Financial, Inc.)
Privilege. (a) Each of the Parties Purchaser, for itself and its successors and assigns, irrevocably acknowledges and agrees that all communications between Seller, the Company and counsel, including, without limitation, Modrall, Sperling, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇ LLP (“▇▇▇▇ ▇▇▇▇▇▇▇▇”) has acted as counsel to Seller and its Affiliates in connection with the negotiation of this Agreement and any consummation of the Transactions.
(b) Each of Parent and Buyer consents and agrees to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller and its Affiliates after the Closing, including with respect to disputes in which the interests of Seller and its Affiliates may be directly adverse to Parent or Buyer and their respective Affiliates, and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented Company or Company Subsidiary in a matter substantially related to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates in connection with any such representation of any fact known to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its Affiliates, Company or Company Subsidiary.
(c) In connection with the foregoing, each of Parent and Buyer irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Company or Company Subsidiary and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and after the Closing.
(d) Each of Parent and Buyer further agrees that all communications in any form or format whatsoever between or among any of ▇▇▇▇ ▇▇▇▇& ▇▇▇▇, CompanyP.A. and in-house counsel, Company Subsidiarymade in connection with the negotiation, any of Seller or its Affiliatespreparation, execution, delivery and closing under, or any of their respective Representatives that relate dispute or Proceeding arising under or in any way to the negotiationconnection with, documentation and consummation of the Transactions, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelywhich, the “Deal Communications”) shall be deemed to be retained, owned and controlled collectively by Seller and shall not pass to or be claimed by Parent or Buyer. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to, and be controlled solely by, Seller and shall not pass to or be claimed by Parent or Buyer.
(e) In the event that a dispute arises between Parent or Buyer and a third party, Parent or Buyer, as applicable, may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such third party; provided, however, that none of Parent, Buyer, Company nor Company Subsidiary may waive such privilege without the prior written consent of Seller. In the event that Parent or Buyer, as applicable, is legally required by Order or otherwise to access or obtain a copy of all or a portion of the Deal Communications, Parent or Buyer, as applicable, shall immediately (and, in any event, within three (3) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective Order, and Parent and Buyer, as applicable, agree to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by ▇▇▇▇ ▇▇▇▇▇▇▇▇ constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Deal Communications by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇, on the one hand, and Buyer or Parent, on the other hand.
(g) Each of Parent and Buyer agrees that it will not (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Seller or any other Person waive the attorney-client or other privilege, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇. In furtherance of the foregoing, it shall not be a breach of any provision of this Agreement if, prior to the Closing, are privileged communications of Seller, Companythe Company and their counsel and are not be subject to disclosure to the Purchaser in connection with any process relating to a dispute arising under or in connection with, this Agreement or otherwise, shall continue after the Closing Date to be privileged communications between the Seller, the Company Subsidiary and such counsel and neither Purchaser, nor any Person acting or purporting to act on behalf of or through Purchaser shall seek to obtain the same by any process on the grounds that the privilege attaching to such communications belongs to Purchaser or the Company and not Seller. Seller for itself, the Company and its respective successors and assigns, irrevocably acknowledges and agrees that all communications between Purchaser and counsel, including, without limitation, Holland & ▇▇▇▇ LLP and in-house counsels, made in connection with the negotiation, preparation, execution, delivery and closing under, or any dispute or Proceeding arising under or in connection with, this Agreement and the Transaction which, immediately prior to the Closing, would be deemed to be privileged communications of their respective Affiliates Purchaser and counsel and would not be subject to disclosure to the Seller and/or the Company in connection with any process relating to a dispute arising under or Representatives take in connection with, this Agreement or otherwise, shall continue after the Closing Date to be privileged communications between Purchaser and such counsels and neither Seller, the Company nor any action Person acting or purporting to protect from access act on behalf of or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good-faith attempts by through Seller or the Company shall seek to obtain the same by any of its process on the grounds that the privilege attaching to such communications belongs to Seller or its Affiliates’ respective Representatives to achieve a Permitted Removal of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent the Company and Buyer agrees that it will not, and that it will cause its Affiliates and Representatives not to, intentionally use or attempt to use any means to access, retrieve, restore, recreate, unarchive or otherwise gain access to or view any Residual Communication for any purposePurchaser.
Appears in 1 contract
Privilege. (a) Each Buyers shall not assert, and shall cause their Affiliates not to assert, any attorney-client privilege with respect to any communication between any of the Parties acknowledges Acquired Companies (prior to the Closing) or any Seller, XPLR Opco, or any of Affiliates of Sellers or XPLR Opco or any of the respective officers, employees, managers or directors of the foregoing (any such Person, a “Designated Person”), on the one hand, and agrees that ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇ ▇▇▇▇▇▇▇▇”) has acted as any legal counsel to Seller and its Affiliates currently or formerly representing a Designated Person in connection with this Agreement, the negotiation of this Agreement and any consummation of the Transactions.
Transaction Documents or Transactions (b) Each of Parent and Buyer consents and agrees to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller and its Affiliates after the Closingcollectively, “Privileged Information”), including in connection with respect to disputes in which a dispute between any Designated Person and one or more of Buyers, the interests of Seller and its Affiliates may be directly adverse to Parent or Buyer Acquired Companies and their respective Affiliates, it being the intention of the Parties that all rights to such attorney-client privilege and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented Company or Company Subsidiary in a matter substantially related to control such attorney-client privilege shall be retained by Sellers, XPLR Opco and their respective Affiliates (excluding the Acquired Companies); provided that with respect to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates in connection with any such representation of any fact known to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its Affiliates, Company or Company Subsidiary.
(c) In connection with the foregoing, each of Parent and Buyer irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with privileged communications that are related (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation to the business of Company or Company Subsidiary and the Acquired Companies, (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and after the Closing.
(d) Each of Parent and Buyer further agrees that all communications in any form assets, Liabilities, Losses or format whatsoever between Litigation or among other matters associated with any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Acquired Company, Company Subsidiary, any of Seller or its Affiliates, or any of their respective Representatives that relate in any way and (iii) only tangentially to the negotiation, documentation and consummation of the Transactions, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Deal Communications”) shall be deemed to be retained, owned and controlled collectively by Seller and shall not pass to or be claimed by Parent or Buyer. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong belongs solely toto the applicable Acquired Company, and may be controlled solely by, Seller by such Acquired Company and shall not pass to or and may be claimed by Parent Buyers or Buyer.
(e) In any Acquired Company. Notwithstanding the foregoing, in the event that a dispute arises between Parent any Buyer or Buyer an Acquired Company, on the one hand, and a third partyparty other than Sellers, Parent or Buyeron the other hand, as applicable, Buyers and the Acquired Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications confidential communications to such third party; provided, however, that none of Parent, Buyer, Company nor Company Subsidiary Buyers or the Acquired Companies may waive such privilege without the prior written consent of Seller. In the event that Parent Sellers and none of Sellers or Buyer, as applicable, is legally required by Order or otherwise to access or obtain a copy their Affiliates may waive such privilege without the prior written consent of all or a portion of the Deal Communications, Parent or Buyer, as applicable, shall immediately (and, in any event, within three (3) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective Order, and Parent and Buyer, as applicable, agree to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by ▇▇▇▇ ▇▇▇▇▇▇▇▇ constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Deal Communications by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇, on the one hand, and Buyer or Parent, on the other hand.
(g) Each of Parent and Buyer agrees that it will not (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Seller or any other Person waive the attorney-client or other privilege, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇. In furtherance of the foregoing, it shall not be a breach of any provision of this Agreement if, prior Notwithstanding anything to the Closingcontrary in this Section 11.12, Seller, Company, Company Subsidiary nothing shall be deemed to limit or prohibit Buyers or any of their respective Affiliates from asserting attorney-client privilege in connection with the ▇▇▇▇▇ Litigation or Representatives take any action to protect from access or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good-faith attempts by Seller or any of its or its Affiliates’ respective Representatives to achieve a Permitted Removal of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent and Buyer agrees that it will not, and that it will cause its Affiliates and Representatives not to, intentionally use or attempt to use any means to access, retrieve, restore, recreate, unarchive or otherwise gain access to or view any Residual Communication for any purposeTransfer Tax Escrow Dispute.
Appears in 1 contract
Sources: Purchase and Sale Agreement (XPLR Infrastructure, LP)
Privilege. (a) Each The Parties agree that, from and after the Closing (and in the case of Seller, from the Parties acknowledges date hereof), to the extent permitted by Law, their respective rights and agrees that ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP obligations to maintain, preserve, assert or waive any or all attorney-client and work product privileges belonging to any Party with respect to the Business and the Purchased Assets, the Excluded Assets, the Assumed Liabilities and the Retained Liabilities (collectively “▇▇▇▇ ▇▇▇▇▇▇▇▇Privileges”) has acted as counsel shall be governed by the provisions of this Section 5.13. From and after the Closing (and in the case of Seller, from the date hereof), with respect to matters primarily relating to the Excluded Assets or the Retained Liabilities, and, notwithstanding the next sentence, with respect to all information of Seller and its Affiliates to the extent relating to the Sale Process (other than information to the extent not relating to the Sale Process but relating to the Business, the Purchased Assets, the Purchased Entities and their Subsidiaries or the Assumed Liabilities), Seller and its Affiliates shall have sole authority in connection perpetuity to determine whether to assert or waive any or all Privileges, and no Purchaser nor any of its Affiliates shall take any action without the prior written consent of Seller that would be reasonably likely to result in any waiver of any such Privilege that could be asserted by Seller or such Affiliate. From and after the Closing, with respect to matters primarily relating to the negotiation Business, Purchased Assets, the Purchased Entities and their Subsidiaries or the Assumed Liabilities, Purchasers shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Seller and its Affiliates shall take no action without the prior written consent of Purchasers that would be reasonably likely to result in any waiver of any such Privilege. Notwithstanding the foregoing sentence, Purchaser agrees not to take any action without the prior written consent of Seller that would be reasonably likely to result in any waiver of any Privilege with respect to matters arising prior to the Closing in relation to the Business, the Purchased Assets or the Assumed Liabilities. All information as to which Seller or any its Affiliates, on the one hand, or Purchasers or any of their Affiliates, on the other hand, would be entitled to assert or has asserted a Privilege pursuant to this Agreement Section 5.13 is referred to as “Privileged Information”. Any waiver of Privilege in relation to Privileged Information over which both Seller or any of its Affiliates and Purchasers or any consummation of their Affiliates are entitled to assert or have asserted a Privilege shall require the Transactionsprior written consent of both Seller and Purchasers.
(b) Each of Parent From and Buyer consents and agrees to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller and its Affiliates after the ClosingClosing (and in the case of Seller, including with respect to disputes in which from the interests of Seller and its Affiliates may be directly adverse to Parent or Buyer and their respective Affiliatesdate hereof), and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented Company or Company Subsidiary in a matter substantially related to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication upon (i) receipt by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates in connection with any such representation of any fact known to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its Affiliates, Company on the one hand, or Company Subsidiary.
(c) In connection with the foregoing, each of Parent and Buyer irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Company or Company Subsidiary and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and after the Closing.
(d) Each of Parent and Buyer further agrees that all communications in any form or format whatsoever between or among any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Company, Company Subsidiary, any of Seller or its Affiliates, Purchasers or any of their respective Representatives that relate in any way to the negotiationAffiliates, documentation and consummation of the Transactions, beginning on the date other hand, of this Agreementany subpoena, discovery or other request from any dispute arising under this Agreement (collectively, third party that actually or arguably calls for the “Deal Communications”) shall be deemed to be retained, owned and controlled collectively by Seller and shall not pass to production or be claimed by Parent or Buyer. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to, and be controlled solely by, Seller and shall not pass to or be claimed by Parent or Buyer.
(e) In the event that a dispute arises between Parent or Buyer and a third party, Parent or Buyer, as applicable, may assert the attorney-client privilege to prevent the disclosure of the Privileged Deal Communications to such third party; providedInformation, however, that none of Parent, Buyer, Company nor Company Subsidiary may waive such privilege without the prior written consent of Seller. In the event that Parent or Buyer, as applicable, is legally required by Order (ii) Seller or otherwise to access or obtain a copy of all or a portion of the Deal Communications, Parent or Buyer, as applicable, shall immediately (and, in any event, within three (3) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective Order, and Parent and Buyer, as applicable, agree to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by ▇▇▇▇ ▇▇▇▇▇▇▇▇ constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Deal Communications by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇Affiliates, on the one hand, and Buyer or ParentPurchasers or any of their Affiliates, on the other hand.
(g) Each of Parent and Buyer agrees , obtaining knowledge that it will not (i) access any current or use the Deal Communicationsformer employee has received any subpoena, including by way of review of any electronic data, communications discovery or other informationrequest from any third party that actually or arguably calls for the production or disclosure of Privileged Information, or by seeking to have Seller or any Purchasers, as the case may be, shall promptly notify the other Person waive the attorney-client or other privilege, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇. In furtherance of the foregoing, existence of the applicable request and shall provide the other a reasonable opportunity to review such request and to assert any rights it shall not be a breach of any provision of may have under this Agreement if, prior to the Closing, Seller, Company, Company Subsidiary or any of their respective Affiliates or Representatives take any action to protect from access or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting Section 5.13 or otherwise taking possession to prevent the production or disclosure of any Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good-faith attempts by Seller or any of its or its Affiliates’ respective Representatives to achieve a Permitted Removal of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent and Buyer agrees that it will not, and that it will cause its Affiliates and Representatives not to, intentionally use or attempt to use any means to access, retrieve, restore, recreate, unarchive or otherwise gain access to or view any Residual Communication for any purposePrivileged Information.
Appears in 1 contract
Privilege. (a) Each of the Parties parties hereto acknowledges and agrees that ▇▇▇▇ ▇▇(i) ▇▇▇▇▇▇ LLP (“▇▇▇▇ ▇▇▇▇▇▇▇▇Sellers’ Counsel”) has acted as counsel to Seller the Company in various matters involving a range of issues and its Affiliates as counsel to the Company in connection with the negotiation of this Agreement and any consummation of the Transactions, and (ii) except for the Company, Sellers’ Counsel has not acted as counsel for any other person in connection with the Transactions and no other party or person has the status of a client of Sellers’ Counsel for conflict of interest or any other purpose as a result thereof.
(b) Each None of Parent and Buyer consents and agrees to ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representing Seller and its Affiliates after Parent, Purchaser, Sub, the Closing, including with respect to disputes in which the interests of Seller and its Affiliates may be directly adverse to Parent or Buyer and their respective Affiliates, and even though ▇▇▇▇ ▇▇▇▇▇▇▇▇ may have represented Surviving Company or Company Subsidiary in a matter substantially related to any such dispute, or may be handling ongoing matters for Seller and its Affiliates. Each of Parent and Buyer further consents and agrees to the communication by ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Seller and its Affiliates in connection with any such representation of any fact known to ▇▇▇▇ ▇▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Seller or any of its Affiliates, Company or Company Subsidiary.
(c) In connection with the foregoing, each of Parent and Buyer irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ prior representation of Company or Company Subsidiary and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates prior to and after the Closing.
(d) Each of Parent and Buyer further agrees that all communications in any form or format whatsoever between or among any of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Company, Company Subsidiary, any of Seller or its Affiliates, or any of their respective Representatives subsidiaries shall assert that relate in any way communication occurring prior to the First Effective Time between Sellers’ Counsel (and any other counsel to the Company or a Company Subsidiary), on the one hand, and the Company or a Company Subsidiary (including any one or more officers, directors, employees or Securityholder of the Company or its Subsidiaries), on the other hand, that is attorney-client privileged, constitutes attorney work product or other attorney-client confidential information arising from communications related to or arising out of the preparation, negotiation, documentation and consummation of the Transactions, beginning on the date of this Agreement, any dispute arising under this Agreement Transactions (collectively, the “Deal Privileged Communications”) constitute attorney-client confidences that belong solely to the Company. Each of Parent, Purchaser, Sub and the Surviving Company (including on behalf of the Company and its Subsidiaries) hereby acknowledges and agrees all Privileged Communications shall be deemed to be retainedattorney-client confidences that belong solely to the Securityholders and their affiliates (and not the Company or its Subsidiaries). Following the First Effective Time, owned the Stockholder Representative and controlled collectively by Seller and shall not pass the Securityholders will be permitted to or be claimed use Privileged Communications in connection with the defense of any claim by Parent or Buyerany other Indemnified Party under Article IX. All Deal Communications that are attorney-client privileged Notwithstanding anything to the contrary in this Agreement, (the “Privileged Deal Communications”x) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to, and be controlled solely by, Seller and shall not pass to or be claimed by Parent or Buyer.
(e) In in the event that a dispute arises between Parent Parent, the Surviving Company or Buyer any of their respective Subsidiaries and a third partyparty after the Closing, Parent Parent, the Surviving Company or Buyer, as applicable, any of their respective Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the any Privileged Deal Communications by Sellers’ Counsel to such third party, (y) neither the Stockholder Representative nor any of the Securityholders or their respective affiliates may waive such attorney-client privilege or disclose such communications or files other than in connection with the enforcement or defense of their respective rights or obligations under this Agreement; provided, however, that and (z) none of Parent, Buyer, Company nor Company Subsidiary the Securityholders or their respective affiliates may waive such privilege or exercise such property rights without the prior written consent of Seller. In the event that Parent or BuyerStockholder Representative, as applicable, is legally required by Order or otherwise to access or obtain a copy on behalf of all or a portion of the Deal Communications, Parent or Buyer, as applicable, shall immediately (and, in any event, within three (3) Business Days) notify Seller in writing (including by making specific reference to this Section) so that Seller can seek a protective Order, and Parent and Buyer, as applicable, agree to use all commercially reasonable efforts to assist therewithSecurityholders.
(f) To the extent that files or other materials maintained by ▇▇▇▇ ▇▇▇▇▇▇▇▇ constitute property of its clients, only Seller shall hold such property rights and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Deal Communications by reason of any attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇▇▇▇, on the one hand, and Buyer or Parent, on the other hand.
(g) Each of Parent and Buyer agrees that it will not (i) access or use the Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Seller or any other Person waive the attorney-client or other privilege, or by otherwise asserting that Parent, Buyer, Company or Company Subsidiary has the right to waive the attorney-client or other privilege or (ii) seek to obtain the Deal Communications from ▇▇▇▇ ▇▇▇▇▇▇▇▇. In furtherance of the foregoing, it shall not be a breach of any provision of this Agreement if, prior to the Closing, Seller, Company, Company Subsidiary or any of their respective Affiliates or Representatives take any action to protect from access or remove from the premises of Company or Company Subsidiary (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good-faith attempts by Seller or any of its or its Affiliates’ respective Representatives to achieve a Permitted Removal of any Deal Communication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Parent or Buyer (each, a “Residual Communication”), each of Parent and Buyer agrees that it will not, and that it will cause its Affiliates and Representatives not to, intentionally use or attempt to use any means to access, retrieve, restore, recreate, unarchive or otherwise gain access to or view any Residual Communication for any purpose.
Appears in 1 contract
Sources: Merger Agreement (2U, Inc.)