Common use of Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege Clause in Contracts

Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege. Each of Purchaser and Purchaser Parent waives and will not assert, and agrees to cause its Subsidiaries, including the Company and its Subsidiaries, to waive and not to assert, any conflict of interest arising out of or relating to the representation, after the Closing (the “Post-Closing Representation”), of Seller Parent, any of its Subsidiaries or any shareholder, officer, employee or director of Seller Parent or any of its Subsidiaries (any such Person, a “Designated Person”) in any matter involving this Agreement or any agreements or transactions contemplated hereby, by any legal counsel currently representing Seller Parent or any of its Subsidiaries in connection with this Agreement or any agreements or transactions contemplated hereby (the “Current Representation”). Each of Purchaser and Purchaser Parent waives and will not assert, and agrees to cause its Subsidiaries, including the Company and its Subsidiaries, to waive and not to assert, any attorney-client privilege with respect to any communication between any legal counsel and any Designated Person occurring during the Current Representation in connection with any Post-Closing Representation, including in connection with a dispute with Purchaser, Purchaser Parent or their Subsidiaries, including the Company and its Subsidiaries (including in respect of any claim for indemnification by any Purchaser Indemnified Party), it being the intention of the parties hereto that all such rights to such attorney-client privilege and to control such attorney-client privilege shall be retained by Seller Parent; provided that the foregoing waiver and acknowledgement of retention shall not extend to any communication not involving this Agreement or any agreements or transactions contemplated hereby, or to communications with any Person other than the Designated Persons and their advisors. Accordingly, from and after Closing, the Company and its Subsidiaries shall not have any access to any such communications or to the files of the Current Representation or to internal counsel relating to such engagement, and none of Purchaser, Parent Purchaser or their Subsidiaries, including the Company and its Subsidiaries, or any Person acting or purporting to act on their behalf shall seek to obtain the same by any process on the grounds that the privilege attaching to such communications and files belongs to Seller Parent.

Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege. Each of Purchaser and Purchaser Parent waives and will not assert, and agrees to cause its Subsidiaries, including Affiliates and the Company and its SubsidiariesPurchased Companies, to waive and not to assert, any conflict of interest arising out of or relating to the representation, after the Closing (the “Post-Closing Representation”)Closing, of Seller ParentSeller, any of its Subsidiaries Affiliates or any shareholder, officer, employee or director of Seller Parent or any of its Subsidiaries Affiliates (any such Person, a “Designated Person”) in any matter involving this Agreement Agreement, the other Transaction Documents or any agreements or transactions contemplated hereby, by any legal counsel currently representing Seller Parent or any of its Subsidiaries in connection with this Agreement or any other agreements or transactions contemplated hereby (the “Current Representation”). Each of Purchaser and Purchaser Parent waives and will not assert, and agrees to cause its Subsidiaries, including the Company and its Subsidiaries, to waive and not to assert, any attorney-client privilege with respect to any communication between any legal counsel and any Designated Person occurring during the Current Representation in connection with any Post-Closing Representationor thereby, including in connection with a dispute with PurchaserPurchaser or its Affiliates, Purchaser Parent or their Subsidiariesand following the Closing, including the with any Purchased Company and its Subsidiaries (including in respect of any claim for indemnification by Purchaser), by any legal counsel currently representing Seller or any of its Affiliates in connection with this Agreement, the other Transaction Documents or any other agreements or transactions contemplated hereby or thereby, including Xxxxxxx Xxxxxxx & Xxxxxxxx, Xxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxxx (collectively, “Seller Counsel” and such representation the “Current Representation”). Purchaser Indemnified Party)will not assert, and agrees to cause its Affiliates and the Purchased Companies not to assert, any attorney-client or other applicable legal privilege or protection with respect to any communication during the Current Representation between Seller Counsel, on the one hand, and any Designated Person, on the other hand regarding this Agreement, the other Transaction Documents or any other agreements or transactions contemplated hereby or thereby, it being the intention of the parties hereto that all such rights to such attorney-client and other applicable legal privilege or protection and to control such attorney-client and other applicable legal privilege or protection shall be retained by Seller Parent; provided and that Seller, and not Purchaser or its Affiliates or the foregoing waiver and acknowledgement of retention Purchased Companies, shall have the sole right to decide whether or not extend to waive any communication not involving this Agreement attorney-client or any agreements other applicable legal privilege or transactions contemplated hereby, or to communications with any Person other than the Designated Persons and their advisorsprotection. Accordingly, from and after the Closing, none of Purchaser, its Affiliates or the Company and its Subsidiaries Purchased Companies shall not have any access to the right to use any such communications or to access the files of the Current Representation Representation, all of which shall be and remain the property of Seller and not of Purchaser, its Affiliates or the Purchased Companies, or to internal counsel relating to such engagement, and none of Purchaser, Parent Purchaser or their Subsidiaries, including the Company and its Subsidiaries, or any Person acting or purporting to act on their behalf shall seek to obtain the same by any process on the grounds that the privilege attaching to such communications and files belongs to Seller Parent.

Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege. Each of (a) Purchaser and Purchaser Parent hereby waives and will not assert, and hereby agrees to cause its Subsidiaries, Affiliates (including the Company and its Subsidiaries, NewCo Entities) to waive and not to assert, any conflict of interest arising out of or relating to the representation, after the Closing (the “Post-Closing Representation”)Closing, of Seller ParentSeller, any of its Subsidiaries Affiliates or any shareholder, officer, member, manager, employee or director of any Seller Parent or any of its Subsidiaries Affiliates (any such Person, a “Designated Person”) in any matter involving this Agreement Agreement, the Transactions, any other Transaction Document or any other agreements or transactions contemplated herebythereby, by any legal counsel currently representing the Persons listed on Section 10.13(a) of the Seller Parent or any of its Subsidiaries in connection with this Agreement or any agreements or transactions contemplated hereby Disclosure Schedules (the each, a “Current Representation”). Each The Parties agree that, in the event that a dispute arises after the Closing between any Designated Person, on the one hand, and any of Purchaser and Purchaser Parent waives and will not assert, and agrees to cause its Subsidiaries, Affiliates (including the Company and its SubsidiariesNewCo Entities), on the other hand, solely arising out of or relating to waive and not to assertthis Agreement, any attorney-client privilege with respect to any communication between any legal counsel and any Designated Person occurring during the Current Representation in connection with any Transactions, the other Transaction Documents or the transactions contemplated thereby (a “Post-Closing RepresentationMatter”), a Current Representation may represent such Designated Person in such Post-Closing Matter even though the interests of such Designated Person may be directly adverse to Purchaser or its Affiliates (including the NewCo Entities), except in connection with a dispute with Purchaser, Purchaser Parent any case in which (x) such Current Representation has represented the NewCo Entities or their Subsidiaries, including respective Affiliates in a matter substantially related to such dispute or (y) at the Company and its Subsidiaries (including in respect of any claim for indemnification by any Purchaser Indemnified Party), it being the intention time of the parties hereto that all commencement of such rights to representation, such attorney-client privilege and to control such attorney-client privilege shall be retained by Seller Parent; provided that the foregoing waiver and acknowledgement of retention shall not extend to any communication not involving this Agreement or any agreements or transactions contemplated hereby, or to communications with any Person other than the Designated Persons and their advisors. Accordingly, from and after Closing, the Company and its Subsidiaries shall not have any access to any such communications or to the files of the Current Representation or to internal counsel relating to such engagement, and none is representing any of Purchaser, Parent Purchaser the NewCo Entities or their Subsidiaries, including the Company and its Subsidiaries, or any Person acting or purporting to act on their behalf shall seek to obtain the same by any process on the grounds that the privilege attaching to such communications and files belongs to Seller Parentrespective Affiliates.

Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege. Each (a) Buyer and Upper Holdings, on behalf of Purchaser themselves and Purchaser Parent waives their respective Affiliates and their and their Affiliates respective directors, officers, members, partners and managers (including, following the Closing, the Company), and their respective successors and assigns (collectively, the “Waiving Parties”), hereby irrevocably waive and will not assert, and agrees agree to cause its Subsidiaries, including the Company and its Subsidiaries, Waiving Parties to waive and not to assert, any conflict of interest interest, breach of duty or any other objection arising out of or relating to the representation, after the Closing (the “Post-Closing Representation”), of Seller Parent, or any of its Subsidiaries Affiliates or any shareholdermember, manager, officer, employee employee, partner or director of Seller Parent or any of its Subsidiaries Affiliates or of the Company (any such Person, a “Designated Person”) in any matter involving involving, arising out of or relating to this Agreement or any other agreements or transactions contemplated herebyhereby or thereby, including any litigation or other dispute or proceeding between or among or involving TVG Holdings, Upper Holdings, Buyer, the Company or any of their respective Affiliates or any other Waiving Party, by Xxxx Xxxxxxx & Xxxxxx LLP or any other legal counsel currently representing Seller Parent or any of its Subsidiaries Affiliates in connection with this Agreement or any other agreements or transactions contemplated hereby or thereby (whether or not such legal counsel also represented Seller) (the “Current Representation”). Each , even though the interests of Purchaser and Purchaser Parent waives and will not assertsuch Designated Person may be directly adverse to TVG Holdings, and agrees to cause its SubsidiariesUpper Holdings, including Buyer, the Company and its Subsidiaries, or any of their respective Affiliates or any other Waiving Party. (b) It is the intention of the Waiving Parties that all rights to waive and not to assert, any attorney-client privilege with respect applicable to communications between Xxxx Xxxxxxx & Xxxxxx LLP and any communication between any other legal counsel and currently representing the Seller or any Designated Person occurring during of its Affiliates, including the Company, in connection with the Current Representation in connection with any Post-Closing Representation, including in connection with a dispute with Purchaser, Purchaser Parent (whether or their Subsidiaries, including the Company and its Subsidiaries (including in respect of any claim for indemnification by any Purchaser Indemnified Party), it being the intention of the parties hereto that all not such rights to such attorney-client privilege and to control such attorney-client privilege legal counsel also represented Seller) shall be retained solely by Seller Parent(and not the Company, Buyer or any Affiliate thereof); provided provided, that the foregoing waiver and acknowledgement of retention shall not extend to any communication to the extent not involving involving, relating to or in connection with this Agreement or any other agreements or transactions contemplated herebyhereby or thereby, the negotiation, preparation, execution, delivery or performance hereof or thereof or any dispute or Claim arising out of or relating hereto or thereto (or any matter relating to communications with any Person other than of the Designated Persons and their advisorsforegoing). Accordingly, from and after the Closing, the Company and its Subsidiaries Waiving Parties shall not have any access to any such communications privileged communications, or to the files of the Current Representation Xxxx Xxxxxxx & Xxxxxx LLP or to internal any other legal counsel relating to such engagement, and none currently representing Seller or any of Purchaser, Parent Purchaser or their Subsidiariesits Affiliates, including the Company (whether or not such legal counsel also represented Seller) in connection with the Current Representation, and in each case may not use or rely on any such privileged communications (including, to the extent such privileged communications are in the possession of the Company, including in the records or email server). Without limiting the generality of the foregoing, upon and after the Closing, (i) Seller and its SubsidiariesAffiliates shall be the sole holders of the attorney-client privilege with respect to the Current Representation, and Buyer and its Affiliates, including the Company, shall not be holders thereof and (ii) to the extent that files of Xxxx Xxxxxxx & Xxxxxx LLP or any Person acting other legal counsel currently representing Seller or purporting any of its Affiliates, including the Company, in connection with the Current Representation (whether or not such legal counsel also represented Seller) constitute property of a client with respect to act on their behalf the Current Representation, only Seller and its Affiliates shall seek to obtain the same by any process on the grounds that the privilege attaching to hold such communications and files belongs to Seller Parentproperty rights.

Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege. Each of Purchaser and Purchaser Parent xiv) Buyer waives and will not assert, and agrees to cause its Subsidiaries, including the Company and its Subsidiaries, to waive and not to assert, assert any conflict of interest arising out of or relating to the representation, after the Closing (the “Post-Closing Representation”), of the Seller Parent, any of its Subsidiaries or any shareholder, officer, employee or director of Seller Parent or any of its Subsidiaries Parties (any such Person, a “Designated Person”) in any matter involving this Agreement or any agreements other Transaction Document or the transactions contemplated herebyhereby or thereby, by any legal counsel currently representing the Seller Parent or any of its Subsidiaries Parties in connection with this Agreement or any agreements other Transaction Document or the transactions contemplated hereby or thereby (the “Current Representation”). Each of Purchaser and Purchaser Parent (b) Buyer waives and will not assert, and agrees to cause its Subsidiaries, including the Company and its Subsidiaries, to waive and not to assert, assert any attorney-client privilege with respect to any communication between any legal counsel and any Designated Person occurring during the Current Representation in connection with any Post-Closing Representation, including in connection with a dispute with Purchaser, Purchaser Parent or their Subsidiaries, including the Company and its Subsidiaries (including in respect of any claim for indemnification by any Purchaser Indemnified Party)Buyer, it being the intention of the parties hereto that all such rights to such attorney-client privilege and to control such attorney-client privilege shall be retained by Seller ParentSeller; provided that the foregoing waiver and acknowledgement of retention shall not extend to any communication not involving this Agreement or any agreements other Transaction Documents or the transactions contemplated herebyhereby or thereby, or to communications with any Person other than the Designated Persons and their advisorsadvisers. AccordinglySection 5.14. Non-Competition and Non-Solicitation by the Seller Parties. (a) In order to protect the goodwill of the Business and so that Buyer may have and enjoy the full benefit of the Transferred Assets and the Business, from and after Closingin consideration of Buyer’s agreements to enter into this Agreement and to pay the Purchase Price, the Company Seller Parties agree that no Seller Party, nor any of its respective Affiliates (each such Person, a “Restricted Person”), during the period beginning on the Closing Date and ending on the second anniversary of the Closing Date, without the written prior approval of Buyer, shall: (i) directly or indirectly, own, operate, control, lend its name to, invest in, or otherwise be affiliated in any manner with the management, ownership, operation or control of, any business, venture or activity that engages in selling, marketing or distributing any product, product line or service indicated for the treatment of full-thickness diabetic foot ulcers that in any way or manner 40 CONFIDENTIAL TREATMENT HAS BEEN REQUESTED competes directly or indirectly with the Product and the Business, as they respectively existed as of the Closing Date (a “Competing Business”); provided that notwithstanding the foregoing, the Restricted Persons shall not be restricted from any of the following: (A) any activity of the Restricted Persons undertaken pursuant to this Agreement or the Secondment Agreement; (B) collectively owning less than five percent (5%) of any class of securities of any publicly-traded company conducting a Competing Business provided that such securities are held as a passive investment; or (C) acquiring one or more Persons or businesses that include within its business a Competing Business, so long as (1) the revenues of the Competing Business constitute no more than 15% of the total revenues of the Person or business being acquired, or would have, on a pro forma basis giving effect to the acquisition, constituted no more than 1% of the total revenues of the Seller Parties and their Affiliates on a consolidated basis, in each case during the twelve calendar months preceding the date of acquisition or (2) if the revenues of the Competing Business constitute more than 15% of the total revenues of such Person or business being acquired, or would have, on a pro forma basis giving effect to the acquisition, constituted no more than 1% of the total revenues of the Seller Parties and their Affiliates on a consolidated basis, in each case during the twelve calendar months preceding the date of acquisition, such Restricted Person completes the sale of the Competing Business within six months of the acquisition; provided, however that if such sale is subject to regulatory approval then such 6-month period shall be extended until five Business Days after all regulatory approvals have been received, but only to the extent that the parties to such sale are using reasonable best efforts to obtain any such approvals; or (ii) directly or indirectly, (A) solicit, hire or take any other action which is intended to induce any employee or consultant of Buyer or any of its Affiliates (including any Hired Employee) to terminate or limit his or her employment with or service to Buyer, whether or not that person would commit a breach of any employment contract or consultancy agreement by leaving the employment of or service to Buyer or such Affiliate or (B) take any other action which is intended to induce (1) any manufacturer, supplier or other business partner of the Business as of the Closing Date to adversely alter, modify or discontinue or limit its relationship with the Business or (2) any customer of the Business at any time during the twelve months prior to the Closing Date, or any prospective customer who as of the date hereof is in active negotiations of a potential business relationship in respect of the Business, to discontinue or limit, or not to commence, purchasing from the Business, provided, however, that the foregoing subclause (A) shall not prohibit any Seller Party (or any of its 41 CONFIDENTIAL TREATMENT HAS BEEN REQUESTED Affiliates) from (X) employing any such Person who has not been employed by Buyer for a period of six months prior to the date such Person was first solicited for employment or (Y) making general advertisements for employment that are not specifically directed at Hired Employees and hiring individuals who respond to such general advertisements. (b) The obligations set forth in this Section 5.14 shall not extend to bind any future acquiror of Seller or any of its Affiliates or any of such acquiror’s other Affiliates (but only in a bona fide acquisition of Seller or such other Affiliate by a non-Affiliated acquirer) (it being agreed that Section 5.14 shall continue to apply to Seller and its Subsidiaries shall not have any access Affiliates (as such Affiliates were constituted immediately prior to any such communications or acquisition but, for the avoidance of doubt, excluding such acquiror and its Affiliates)). (c) Each Restricted Person agrees with Buyer that the covenants in this Section 5.14 are reasonable in all respects (including with respect to the files subject matter, time period and geographical area) and are necessary to protect the interests of Buyer and in the Current Representation or to internal counsel relating to such engagement, Business and none of Purchaser, Parent Purchaser or their Subsidiariesthe Transferred Assets, including the Company goodwill and its Subsidiariesthe Transferred Intellectual Property Rights. Further, each Restricted Person acknowledges that, without the restrictions contained in this Section 5.14, the benefits of the transactions contemplated by this Agreement, particularly given the nature of the Transferred Assets and Business being acquired hereunder, their highly confidential nature and the ongoing marketing and distribution of the Products, could be circumvented, and that Buyer would not have entered into this Agreement without the restrictions contained in this Section 5.14. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Section 5.14 is invalid or unenforceable, Buyer and the Seller Parties agree that the court making such determination of invalidity or unenforceability shall be required to reduce the scope, duration, or geographic area of such term or provision, to delete specific words or phrases, or to replace any Person acting invalid or purporting unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to act on their behalf expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall seek to obtain the same by any process on the grounds that the privilege attaching to such communications and files belongs to Seller Parentbe enforceable as so modified. Section 5.15.