Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection. (b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]
Appears in 1 contract
Samples: Merger Agreement
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies Buyer and the Company Holders are clients of hereby acknowledges that Xxxxxx LLP Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. (the “Firm”). After the Closing, it is possible that Firm will represent ) has represented the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely its Subsidiaries in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companiesagreements. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller GroupSuch parties agree that, solely in connection with any litigation, claim or obligation arising out the case of or a dispute relating to this Agreement, Agreement or the transactions contemplated by this Agreement. Each herein in which the interests of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof Company Equityholders are adverse to consent to waive any conflict of interest arising from such representation. Each those of the parties hereto acknowledges that such consent and waiver is voluntaryBuyer, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching privilege as a result of the Firm’s representation of the Acquired Companies solely Company and its Subsidiaries in connection with the transactions contemplated by this Agreement and any related agreements to the extent relating solely to the transactions contemplated by this Agreement, and all information and documents communications covered by such privilege or protection attorney-client privilege, to the extent relating solely to such transactions (the “Covered Communications”), shall, after the Effective TimeClosing, belong to and be controlled solely by the Stockholder Company Equityholder Representative, on behalf of the Company HoldersEquityholders, and may only be waived by the Stockholder Company Equityholder Representative, on behalf of the Company HoldersEquityholders. Following To the Effective Time, Parent -70- and Company agree extent that they will not request from the Firm, the Stockholder Representative Buyer or the Company Holders receives or takes physical possession of any of Covered Communications after the communications between the FirmClosing, on the one handsuch physical possession or receipt shall not, and Company and/or in any way, be deemed a waiver by the Company Holders, on Equityholder Representative and the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent Company Equityholders or any other Indemnified Party under Article VIII; providedPerson, howeverof the privileges or protections described in this section.
(b) In addition, and notwithstanding the foregoing in this Section 11.12, in the event that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests a dispute arises between Buyer, the Transitory Subsidiary or discovery in any proceeding so long as such Communications would not be subject to an the Company and a third party other than a Company Equityholder or the Company Equityholder Representative, the Company may assert the attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications confidential communications to any such third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank].
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto Party acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies Company and the Company Pre-Closing Holders are clients of Xxxxxx Cxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Pre-Closing Holders and/or the Stockholder Holder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Pre-Closing Holders. ParentAcquiror, the Surviving Corporation, Corporation and the Acquired Companies Company hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent Acquiror (and/or the Company) and Stockholder the Holder Representative, even though the interests of Stockholder Holder Representative may be directly adverse to Parent Acquiror or the Acquired CompaniesCompany, and even though the Firm may have represented the Acquired Companies Company in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired CompaniesCompany. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, representative or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, Agreement or the transactions contemplated by this Agreement. Each of the parties hereto party consents thereto, and waives any conflict of interest arising therefrom, and each such party Party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto party acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]
Appears in 1 contract
Waiver of Conflicts Regarding Representation. Notwithstanding anything to the contrary in any other agreement, recognizing that Weil, Gotshal & Mxxxxx LLP (a“Weil”) Each of has acted as legal counsel to the parties hereto acknowledges Stockholders’ Representative, the Company and agreesthe Company Subsidiaries and their respective Affiliates in connection with the Merger and the other transactions contemplated hereby, and that Weil intends to continue to act in those roles to the Stockholders’ Representative and its Affiliates after the Closing, the Company, Parent and Merger Sub each hereby waives, on its own behalf and on behalf of its directorsAffiliates, membersany conflicts that have arisen or may arise in connection with Weil representing the Stockholders’ Representative and its Affiliates prior to, partnersat or after the Closing or the Stockholders’ Representative in contesting and settling any claims arising out of this Agreement or resolving any other disputes hereunder, officersincluding representing the Stockholders’ Representative and its Affiliates against Parent, employeesMerger Sub, and the Company, any Company Subsidiary and/or any of their respective Affiliates that the Acquired Companies in litigation, arbitration or mediation in connection therewith. Parent, Merger Sub and the Company Holders are clients each consents, on its own behalf on behalf of Xxxxxx LLP (“Firm”). After its Affiliates, to the Closing, it is possible that Firm will represent continued representation of the Company Holders and/or the Stockholder Stockholders’ Representative (individually and collectively, the “Seller Group”) solely its Affiliates by Weil in connection with the transactions contemplated by this AgreementMerger notwithstanding the fact that Weil may have represented or advised, includingand may currently or in the future represent or advise, for the avoidance Company and/or any of doubt, its Affiliates with respect to unrelated matters and notwithstanding anything to the contrary in any claim for indemnification against other agreement. In addition, Parent, Merger Sub and the Company Holderseach hereby acknowledges that its consent and waiver under this Section 6.8 is voluntary and informed, and that Parent, Merger Sub and the Company have each obtained independent legal advice with respect to this consent and waiver. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative Merger Sub and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense each agree that Weil is an express third party beneficiary of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]6.8.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. Xxxxxx, Xxxxxxx & Xxxxxx, LLP (a“MMM”) Each has acted as counsel for the Company Group and the Representative (collectively, the “Company Parties”) in connection with this Agreement and the Transactions (the “Acquisition Engagement”) and, in that connection, not as counsel for any other Person, including, without limitation, Buyer, Merger Sub or any of their Affiliates (including the Surviving Corporation). Only the Company Parties shall be considered in connection with the Transactions clients of MMM in the Acquisition Engagement. If the Representative so desires, MMM shall be permitted, without the need for any future waiver or consent, to represent any of the parties hereto Representative or the Company Securityholders from and after the Closing in connection with any matter related to the matters contemplated by the Transaction Documents and any other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the Representative or, the Company Securityholders, in any of the foregoing cases including in any dispute, litigation or other adversary proceeding against, with or involving the Surviving Corporation or any of their agents or Affiliates (in such capacity). To the extent that communications between a Company Party, on the one hand, and MMM, on the other hand, relate to the Acquisition Engagement and such communications are protected by the attorney-client privilege as between MMM and the Company Parties, including the Company Group prior to the Effective Time and all attorney work product prepared in connection with the Acquisition Engagement (such communications, collectively, the “Attorney-Client Communications”), such Attorney-Client Communications shall be deemed to belong solely to the Representative, for and on behalf of the Company Securityholders, and not Buyer, the Company, the Surviving Corporation or their Subsidiaries. Buyer acknowledges and agrees, on its own behalf for itself and on behalf of its directorsAffiliates, members, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, including the Surviving Corporation, upon and after the Acquired Companies hereby agree that Firm Closing: (a) the Representative, for and on behalf of the Company Securityholders, and MMM shall be the sole holders of the attorney-client privilege and work product privilege with respect to the Acquisition Engagement, and none of Buyer, Merger Sub nor any of its or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreementtheir Affiliates, including the Surviving Corporation, shall be a dispute that arises after the Closing between Parent (and/or Company) holder thereof; and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each MMM shall have no duty whatsoever to reveal or disclose any Attorney-Client Communications to Buyer, Merger Sub or any of Parent its or their Affiliates, including the Surviving Corporation, by reason of any attorney-client relationship between MMM and the Company hereby acknowledgesGroup, the Representative or otherwise. Buyer (on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement) agree to take, and to cause their respective Affiliates to take, all information steps necessary to implement the intent of this Section 10.11. MMM and documents covered by such privilege or protection shall, after the Effective Time, belong to its partners and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated employees are third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense beneficiaries of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]10.14.
Appears in 1 contract
Samples: Merger Agreement (SmartRent, Inc.)
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agreesParent agrees that, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After following the Closing, it is possible that Firm will represent Xxxxxxxxxx Xxxxxxx LLP may serve as counsel to any of the Company Holders and/or the Stockholder Representative (individually and collectivelyStockholders Representative, the “Seller Group”) solely Stockholders and any of their respective Affiliates in connection with any matters related to this Agreement and the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreementhereby, including a any dispute that arises after the Closing between Parent (and/or Company) the Surviving Corporation and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firmtheir respective Subsidiaries or Affiliates, on the one hand, and Company the Stockholders Representative and/or the Company HoldersStockholders and any of their respective Affiliates, on the other hand, solely relating in connection with any matter related to this Agreement and the transactions contemplated hereby (a “Transaction Dispute”), notwithstanding (a) any representation by Xxxxxxxxxx Xxxxxxx LLP of the Company prior to the Closing Date or (b) that the interests of the Stockholders Representative, the Stockholders and any of their respective Affiliates may be directly adverse to Parent and the Surviving Corporation or their respective Subsidiaries. The Stockholders Representative and the Stockholders agree that, as to all communications among Xxxxxxxxxx Xxxxxxx LLP and the Company, the Stockholders Representative, Stockholders, or their respective Affiliates and representatives that relate in any way to this Agreement and the transactions contemplated by this Agreement (the “Client Communications”), including, for the avoidance attorney-client privilege and the expectation of doubt, client confidence with respect to any claim in connection with any claim such Client Communications belongs to the Surviving Corporation and shall not pass to or be claimed by Parent the Stockholders Representative, the Stockholders or any other Indemnified Party under Article VIIIof their respective Affiliates; provided, however, that nothing contained herein the Stockholders Representative, the Stockholders and their respective Affiliates shall prevent Parent from requesting any be permitted to access and use the Client Communications in connection with document production requests or discovery in any proceeding Transaction Dispute, so long as such Communications use would not reasonably be subject expected to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may would reasonably be expected to be asserted against any unrelated third party to prevent disclosure of any Client Communications in a manner detrimental to Parent, the Surviving Corporation, or any third partyof their respective Subsidiaries or Affiliates (other than a de minimis, ministerial, or administrative matter). For Neither the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Stockholders Representative nor the Stockholders, nor any Company Holder of their respective Affiliates, shall take any actionassert ownership of the Client Communications, the attorney-client privilege, attorney work product privilege, or cause the Firm to take any action, that would reasonably be expected to waive any such other legal privilege or protection with respect to any third party. [remainder Client Communications, against Parent, the Surviving Corporation, or any of page intentionally left blank]their respective Subsidiaries or Affiliates.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates agrees that the Acquired Companies Company and the Company Holders are clients of Xxxxxx Selling Stockholders have retained Oxxxxx, Hxxxxxxxxx & Sxxxxxxxx LLP and Mxxxxxxx & Fxxxxxxx LLP (collectively, “FirmFirms”)) to act as their counsel in connection with the Transactions. After the Closing, it is possible that Firm Firms will represent the Company Holders Selling Stockholders and/or the Stockholder Sellers Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions Transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company HoldersSelling Stockholders. Parent, the Surviving Corporation, and the Acquired Companies Company hereby agree that Firm Firms (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreementhereunder, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder the Sellers Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm Firms (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this AgreementTransactions. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agreesRecognizing that Xxxx, on its own behalf and on behalf of its directors, members, partners, officers, employeesXxxxx has acted as legal counsel to certain Merger Participants, and Affiliates that the Acquired Companies and may be deemed to have acted as legal counsel to the Company Holders are clients of Xxxxxx LLP (“Firm”). After Group prior to the Closing, it is possible and that Firm will represent Xxxx, Xxxxx intends to act as legal counsel to certain Merger Participants and/or the Seller Representative after the Closing, Parent hereby waives and agrees to cause the Company Holders and/or the Stockholder Representative (individually and collectivelyGroup to waive, the “Seller Group”) solely any conflicts that may arise in connection with the transactions contemplated by this AgreementXxxx, including, for the avoidance of doubt, with respect to Xxxxx representing any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises Merger Participants after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, Agreement or the transactions contemplated by this Agreementhereby. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
Parent (b) Each of Parent and Company hereby acknowledges, on behalf of itself and, following the Closing, the Company Group) also further agrees that, as to all communications prior to the Closing among Paul, Weiss, on the one hand, and its Affiliatesany Merger Participant, the Company Group or any of their respective Affiliates or Representatives, on the other hand, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with relate exclusively to the transactions contemplated by this Agreement, the attorney-client privilege and all information the expectation of client confidence belongs to the applicable Merger Participant and documents covered by such privilege or protection shall, after the Effective Time, belong to and may be controlled solely by the Stockholder Representative, on behalf of the Company Holders, applicable Merger Participant and may only shall not pass to or be waived claimed by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders Group. Notwithstanding the foregoing, in the event that a dispute arises between Parent or the Company Group and a third party other than a Merger Participant or any of their Affiliates after the Closing, such Person may assert or waive the attorney-client privilege to prevent disclosure of confidential communications between the Firmby Xxxx, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating Xxxxx to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIIIsuch third party; provided, however, that nothing contained herein neither Parent nor the Company Group may waive such privilege without the prior written consent of the Seller Representative (which consent shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced unreasonably withheld, conditioned or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]delayed).
Appears in 1 contract
Samples: Merger Agreement (ModivCare Inc)
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies Parent and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Group Companies hereby agree that Firm (or any successor) may represent the Seller Group that, in the future solely in connection with issues event that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Companyor the Group Companies and their successors) and Stockholder Representativethe Seller Representative or any Seller to the extent relating to the transactions contemplated hereby, then Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP (“Xxxxxxxxx”), which have been retained by the Group Companies to act as counsel in connection with the transactions contemplated hereby, may represent such Seller(s) and/or the Seller Representative in such dispute even though the interests of Stockholder such Seller(s) or the Seller Representative may be directly adverse to Parent (or the Acquired CompaniesGroup Companies and their successors), and even though the Firm Xxxxxxxxx may have represented the Acquired Group Companies in a matter substantially related to such dispute dispute. Parent further agrees that, the communications among, on the one hand, Xxxxxxxxx and/or and Proskauer Rose LLP (“Proskauer”) and, on the other hand, the Group Companies, any Seller or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or Representative that relate exclusively the transactions contemplated by this Agreement. Each Agreement or the Ancillary Agreements that would, immediately prior to the Closing, be deemed to be attorney-client privileged communications thereof and would not be subject to disclosure to Parent in connection with any process relating to a dispute arising under or in connection with this agreement or otherwise, the attorney-client privilege and the exception of client confidence belongs solely to the parties hereto consents theretoSellers and may be controlled only by the Seller Representative and shall not pass to (whether by operation of law or otherwise) or be claimed by Parent or its Affiliates, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of because the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each interests of Parent and Company hereby acknowledgesits Affiliates were directly adverse to the Group Companies, on behalf of itself and its Affiliates, that any such Seller(s) and/or the Seller Representative at the time such communications were made. This right to the attorney-client privilegeprivilege shall exist even if such communications may exist on the Group Companies’ computer system or in documents in Group Companies’ possession. Notwithstanding the foregoing, attorney work-product protection and expectation of client confidence attaching as in the event that a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, dispute arises after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Closing between Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the FirmGroup Companies and their successors, on the one hand, and Company and/or the Company Holdersa Person other than a party or a Seller, on the other hand, solely relating to the transactions contemplated by this Agreement (Group Companies and their successors may assert the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure to such third party of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]information.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agreesXxxxxx, on its own behalf and on behalf of its directorsXxxxxxx & Xxxxxx, members, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“FirmMMM”). After the Closing, it is possible that Firm will represent ) has acted as counsel for the Company Holders and/or Group (prior to the Stockholder Representative Closing Date) and the Seller (individually and collectively, the “Seller GroupCompany Parties”) solely in connection with this Agreement and the transactions contemplated hereby (the “Acquisition Engagement”) and, in that connection, not as counsel for any other Person, including, without limitation, Buyer or any of its Affiliates (including the Company Group, from and after the Closing Date). Only the Company Parties shall be considered clients of MMM in the Acquisition Engagement. If the Seller so desires, MMM shall be permitted, without the need for any future waiver or consent, to represent any of the Seller or the Seller Indemnified Parties from and after the Closing in connection with any matter related to the matters contemplated by this Agreement, includingthe Transaction Documents, for the avoidance Excluded Documents any other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of doubtthe Seller or the Seller Indemnified Parties, in any of the foregoing cases including in any dispute, litigation or other adversary proceeding against, with respect to any claim for indemnification against or involving the Company Holders. Parent, the Surviving Corporation, Group (from and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or CompanyDate) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all of their agents or a portion of Affiliates (in such capacity). To the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges extent that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firma Company Party, on the one hand, and Company and/or the Company HoldersMMM, on the other hand, solely relating relate to the transactions contemplated Acquisition Engagement and such communications are protected by this Agreement the attorney-client privilege as between MMM and the Company Parties, including the Company Group prior to the Effective Time and all attorney work product prepared in connection with the Acquisition Engagement (such communications, collectively, the “Attorney-Client Communications”), includingsuch Attorney-Client Communications shall be deemed to belong solely to the Seller, and not Buyer or the Company Group (from and after the Closing Date). Buyer acknowledges and agrees, for itself and on behalf of its Affiliates, including the avoidance Company Group (from and after the Closing), upon and after the Closing: (a) the Seller, for and on behalf of doubtthe Seller Indemnified Parties, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein and MMM shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holders of the attorney-client privilege if they were being requested in and work product privilege with respect to the Acquisition Engagement, and none of Buyer nor any of its Affiliates, including the Company Group from and after the Closing Date, shall be a proceeding holder thereof; and (b) MMM shall have no duty whatsoever to reveal or disclose any Attorney- Client Communications to Buyer or any of its Affiliates, including the Company Group from and after the Closing Date, by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative reason of any attorney-client relationship between MMM and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent Group or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third partyotherwise. [remainder of Signature page intentionally left blankfollows.]
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx (“WSGR”) and Mxxxx & Rxxxx (“MR”) has acted as counsel for certain of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies Sellers and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller GroupCompany Parties”) solely in connection with the negotiation and execution of this Agreement, the Ancillary Documents and the negotiation and consummation of the transactions contemplated hereby and thereby (the “Acquisition Engagement”) and, in that connection, not as counsel for any other Person, including Parent or any of its Affiliates (including the Surviving Corporation). Only the Company Parties shall be considered clients of WSGR or MR in the Acquisition Engagement. WSGR and MR shall be permitted, without the need for any future waiver or consent, to represent any of the Sellers after the Closing in connection with any matter related to the matters contemplated by this AgreementAgreement or the Ancillary Documents, includingany other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the Sellers in any of the foregoing cases including in any dispute, for the avoidance of doubtlitigation or other adversary proceeding against, with respect to any claim for indemnification against the Company Holders. or involving Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (Corporation or any successor) may represent of their agents or Affiliates. To the Seller Group in the future solely in connection with issues extent that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firma Company Party, on the one hand, and Company and/or the Company HoldersWSGR or MR, on the other hand, solely relating relate to the transactions contemplated by this Agreement Acquisition Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the Sellers, and not the Company or Surviving Corporation. Neither Parent nor any of its Affiliates, including the Surviving Corporation, shall have access to (and Parent hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communications or the “Communications”)files or work product of WSGR or MR, includingto the extent that they relate to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, Parent acknowledges and agrees, for itself and on behalf of its Affiliates, including the avoidance Surviving Corporation, upon and after the Closing: (a) the Sellers and WSGR or MR shall be the sole holders of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third partyAcquisition Engagement, and neither the Stockholder Representative Parent nor any Company Holder of its Affiliates, including the Surviving Corporation, shall take any actionbe a holder thereof; and (b) to the extent that files or work product of WSGR and MR in respect of the Acquisition Engagement constitute property of the client, or cause only the Firm to take any action, that would reasonably be expected Sellers shall hold such property rights and have the right to waive or modify such property rights. Notwithstanding and without limiting the foregoing, in the event that a dispute arises between any such privilege of Parent or protection the Surviving Corporation or their Affiliates, on one hand, and any of the Sellers, on the other hand, concerning the matters contemplated in this Agreement, Parent, for itself and on behalf of its Affiliates and the Surviving Corporation and its Affiliates, agrees that Parent, the Surviving Corporation and their Affiliates shall not offer into evidence or otherwise attempt to any third party. [remainder of page intentionally left blank]use or assert the foregoing attorney-client communications, privileged files or privileged work product against the Sellers.
Appears in 1 contract
Samples: Merger Agreement (SYNAPTICS Inc)
Waiver of Conflicts Regarding Representation. Notwithstanding anything to the contrary in any other agreement, recognizing that Xxxx, Gotshal & Xxxxxx LLP (a“Weil”) Each of has, prior to the parties hereto acknowledges Effective Time, acted as legal counsel to the Stockholders’ Representative, the Company and agreesthe Company Subsidiaries and their respective Affiliates in connection with the Merger and the other transactions contemplated hereby, and that Xxxx intends to continue to act as legal counsel to the Stockholders’ Representative and its Affiliates (but not the Company and the Company Subsidiaries) after the Closing, the Company, Parent and Merger Sub each hereby waives, on its own behalf and on behalf of its directorsAffiliates, members, partners, officers, employees, and Affiliates any conflicts that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely have arisen or may arise in connection with Xxxx representing the transactions contemplated by Stockholders’ Representative and its Affiliates prior to, at or after the Closing or the Stockholders’ Representative in contesting and settling any claims arising out of this AgreementAgreement or resolving any other disputes hereunder, includingincluding representing the Stockholders’ Representative and its Affiliates against Parent, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. ParentMerger Sub, the Surviving Corporation, any Company Subsidiary and/or any of their respective Affiliates in litigation, arbitration or mediation in connection therewith. Parent, Merger Sub and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this AgreementCompany each consents, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on its own behalf on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of to the Firm’s continued representation of the Acquired Companies solely Stockholders’ Representative and its Affiliates by Xxxx in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege Merger notwithstanding the fact that Xxxx may have represented or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holdersadvised, and may only be waived by currently or in the Stockholder Representativefuture represent or advise, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders and/or any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, its Affiliates with respect to any claim unrelated matters and notwithstanding anything to the contrary in connection with any claim by Parent or any other Indemnified Party under Article VIII; providedagreement. In addition, howeverParent, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative Merger Sub and the Company Holders shall be permitted to use each hereby acknowledges that its consent and waiver under this Section 6.8 is voluntary and informed, and that Parent, Merger Sub and the Communications Company have each obtained independent legal advice with respect to any claim in connection with this consent and waiver. Parent, Merger Sub and the defense Company each agree that Xxxx is an express third party beneficiary of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]6.8.
Appears in 1 contract
Samples: Merger Agreement (Acuren Corp)
Waiver of Conflicts Regarding Representation. (a) Each Recognizing that Meitar Liquornik Xxxx Xxxxxx Tal (“Meitar”), Keker & Van Nest LLP (“Keker”), Xxxxxx, Xxx and Xxxxxx (“HFN”) and/or Shearman & Sterling LLP (“S&S”) has acted as legal counsel to the Company Shareholder and/or the Company prior to the Closing, and that Meitar, Keker, HFN and/or S&S may act as legal counsel to the Company Shareholder or the Company after the Closing Date, each of the parties hereto acknowledges Parent, Purchaser, Company Shareholder and agreesCompany hereby waives, on its own behalf and on behalf of agrees to cause its directorssubsidiaries to waive, members, partners, officers, employees, and Affiliates any conflicts that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely may arise in connection with the transactions contemplated by this AgreementMeitar, includingKeker, for the avoidance of doubt, with respect to any claim for indemnification against HFN and/or S&S representing the Company Holders. Parent, Shareholder or the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises Company after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connectionDate.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective TimeClosing, Parent -70- and Company agree Purchaser agrees that they it will not request from the FirmCompany Shareholder, Keker, HFN or S&S, or use or intentionally access, any documents or communications covered by the Stockholder Representative or attorney-client privilege and/or work product doctrine in favor of the Company Holders any of the and/or Company Shareholder (such as witness interview memoranda, claims analyses, attorney communications between the Firmand attorney-client communications; but for clarity and without limitation, on the one handit will not include facts, data, and Company and/or the Company Holders, on the other hand, solely Andromeda communications) relating to the transactions contemplated by negotiation, execution and delivery of the CPO and Release Agreement and/or this Agreement (the “CommunicationsHyperion Counsel Materials”), including, for the avoidance of doubt, with respect to any claim ) in connection with any claim by Parent or any other Indemnified Party dispute arising under Article VIIIthe CPO and Release Agreement and/or this Agreement; provided, however, that nothing contained herein shall prevent Parent Purchaser from requesting requesting, using or accessing any Communications Hyperion Counsel Materials in connection with document production requests or discovery from any Governmental Entity or in any legal proceeding so long as such Communications Hyperion Counsel Materials would not be subject to an attorney-client privilege if they were being requested by a Governmental Entity or in a legal proceeding by an unrelated third party and such Communications Hyperion Counsel Materials are produced or required to be produced in response to such Governmental Entity’s request, or document production requests or discovery. Following the Effective TimeIN WITNESS WHEREOF, Parent, Purchaser, the Stockholder Representative Company and the Company Holders shall Shareholder have caused this Share Purchase Agreement to be permitted executed and delivered by their respective officers thereunto duly authorized, all as of the date first written above. HYPERION THERAPEUTICS, INC. By: Name: Title: COMPANY SHAREHOLDER: HYPERION THERAPEUTICS ISRAEL HOLDING CORP. LTD. By: Name: Title: [SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT] IN WITNESS WHEREOF, Parent, Purchaser, the Company and the Company Shareholder have caused this Share Purchase Agreement to use be executed and delivered by their respective officers thereunto duly authorized, all as of the Communications with respect date first written above. ANDROMEDA BIOTECH LTD. By: Name: Title: [SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT] IN WITNESS WHEREOF, Parent, Purchaser, the Company and the Company Shareholder have caused this Share Purchase Agreement to any claim in connection with be executed and delivered by their respective officers thereunto duly authorized, all as of the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third partydate first written above. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third partyCLAL BIOTECHNOLOGY INDUSTRIES LTD. By: Name: Title: [remainder of page intentionally left blankSIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
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Waiver of Conflicts Regarding Representation. (a) Each of Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx (“WSGR”) has acted as counsel for the parties hereto acknowledges and agreesEquityholders, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies Company and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Equityholders’ Representative (individually and collectively, the “Seller GroupCompany Parties”) solely in connection with the preparation, negotiation and consummation of this Agreement and the transactions contemplated hereby (the “Acquisition Engagement”) and, in that connection, not as counsel for any other Person, including Parent or any of its Affiliates. Only the Company Parties shall be considered clients of WSGR in the Acquisition Engagement. If the Equityholders’ Representative so desires, WSGR shall be permitted, without the need for any future waiver or consent, to represent any of the Company Parties after the Closing in connection with any matter related to the matters contemplated by this Agreement, includingany other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the Company Parties, for in any of the avoidance of doubtforegoing cases including in any dispute, litigation or other adversary proceeding against, with respect to any claim for indemnification against the Company Holders. or involving Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (Corporation or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent their agents or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connectionAffiliates.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, To the extent that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firma Company Party, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, solely relating relate to the transactions contemplated by this Agreement Acquisition Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the Equityholders’ Representative, for and on behalf of the Company Parties. Parent hereby waives, on behalf of Parent and its Affiliates (the “Communications”), including, for following the avoidance Closing, any Acquired Company) any right of doubt, access it may otherwise have with respect to any claim in connection with any claim by such communications or the files or work product of WSGR, to the extent that they relate to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, Parent or any other Indemnified Party under Article VIII; providedacknowledges and agrees, howeverfor itself and on behalf of its Affiliates, that nothing contained herein including the Surviving Corporation, upon and after the Closing: (i) the Equityholders’ Representative, for and on behalf of the Company Parties, and WSGR shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holders of the attorney-client privilege if they were being requested with respect to the Acquisition Engagement, and neither Parent nor any of its Affiliates, including the Surviving Corporation, shall be a holder thereof; (ii) to the extent that files or work product of WSGR in a proceeding respect of the Acquisition Engagement constitute property of the client, only the Equityholders’ Representative, for and on behalf of the other Company Parties, shall hold such property rights and have the right to waive or modify such property rights; and (iii) WSGR shall have no duty whatsoever to reveal or disclose any such attorney-client communications, files or work product to Parent or any of its Affiliates, including the Surviving Corporation, by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative reason of any attorney-client relationship between WSGR and the Company Holders or otherwise. Notwithstanding and without limiting the foregoing, in the event that a dispute arises between any of Parent or the Surviving Corporation or their Affiliates, on one hand, and any of the Company Parties, on the other hand, concerning the matters contemplated in this Agreement, Parent, for itself and on behalf of its Affiliates and the Surviving Corporation and its Affiliates, agrees that Parent, the Surviving Corporation and their Affiliates shall be permitted not offer into evidence or otherwise attempt to use or assert the Communications with respect to any claim in connection with foregoing attorney-client communications, files or work product against the defense of any claim by Parent Equityholders’ Representative or any the other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Parties.
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Waiver of Conflicts Regarding Representation. (a) Each Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, P.C. (“WSGR”) has acted as counsel for the Company in connection with the sale of the parties hereto acknowledges Company, including the process by which the Company solicited, discussed and agreesnegotiated strategic alternatives prior to the date hereof, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies this Agreement and the Company Holders are clients of Xxxxxx LLP other agreements referenced herein or therein and the Transactions (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller GroupSale Engagement”) solely and, in connection with that connection, not as counsel for any other Person, including the transactions contemplated by this Agreement, including, for the avoidance Purchaser or any of doubt, with respect to any claim for indemnification against its Affiliates. Only the Company Holdersshall be considered a client of WSGR in the Sale Engagement. ParentNotwithstanding anything contained herein to the contrary, the Surviving Corporation, and the Acquired Companies hereby agree that Firm if any Seller (or the Sellers’ Representative) so desires, WSGR shall be permitted, without the need for any successorfuture waiver or consent, to represent any Seller or the Seller’s Representative (each, a “Seller Party”) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating matter related to this Agreement, or the transactions matters contemplated by this Agreement. Each Agreement or any other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of any Seller Party, in any of the parties hereto consents theretoforegoing cases including in any dispute, and waives litigation or other adversary proceeding against, with or involving the Purchaser, or any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel its agents or have been advised they should do so in this connectionAffiliates.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, To the extent that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the FirmCompany or any Seller Party, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, relate solely relating to the transactions contemplated by this Agreement (Sale Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the “Communications”), includingSellers’ Representative, for and on behalf of the avoidance Seller Parties. Neither the Purchaser, nor any of doubtits Affiliates, with respect shall have access to any claim in connection with any claim by Parent such communications or any other Indemnified Party under Article VIII; providedthe files or work product of WSGR, howeverto the extent that they relate solely to the Sale Engagement, that nothing contained herein whether or not the Closing occurs. Without limiting the generality of the foregoing, the Purchaser acknowledges and agrees, for itself and on behalf of its Affiliates, upon and after the Closing: (i) the Sellers’ Representative, for and on behalf of the Seller Parties, and WSGR shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holders of the attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with information that relates solely to the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third partySale Engagement, and neither the Stockholder Representative Purchaser nor any of its Affiliates, shall be a holder thereof; (ii) to the extent that files or work product of WSGR that relate solely to the Sale Engagement constitute property of the client, only the Sellers’ Representative, for and on behalf of the other Seller Parties, shall hold such property rights and have the right to waive or modify such property rights; and (iii) WSGR shall have no duty whatsoever to reveal or disclose any such attorney-client communications, files or work product to the Purchaser or any of its Affiliates, by reason of any attorney-client relationship between WSGR and the Company Holder to the extent relating solely to the Sale Engagement; provided that, to the extent any communication is both related and unrelated to the Sale Engagement, the Sellers’ Representative, for and on behalf of the other Seller Parties, shall take instruct WSGR to provide copies of such communications, files or work product to the Purchaser or its Affiliates (with only that information that solely relates to the Sale Engagement redacted). Notwithstanding the foregoing, if after the Closing a dispute arises between the Purchaser or one or more of its Subsidiaries, on the one hand, and a third party other than (and unaffiliated with) any actionSeller Party, on the other hand, then the Purchaser or cause such Subsidiary (to the Firm extent applicable) may assert the attorney-client privilege to take any actionprevent disclosure to such third party of confidential communications of the Current Representation; provided, that would reasonably be expected to neither the Purchaser nor any of its Subsidiaries may waive any such privilege without the prior written consent of the Sellers’ Representative; provided, further, that no Seller Party will waive attorney-client privilege without the prior written consent of the Purchaser in the event that a dispute or protection to any investigation or audit arises after the Closing between the Purchaser or the Company, on the one hand, and a third party. [remainder of page intentionally left blank], on the other hand.
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Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller GroupWSGR”) solely has acted as counsel for the Seller in connection with this Agreement and the transactions contemplated by this Agreementhereby (the “Acquisition Engagement”) and, in that connection, not as counsel for any other Person, including, for the avoidance of doubtwithout limitation, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (Purchaser or any successor) may represent of its Affiliates. Only the Seller Group shall be considered the client of WSGR in the Acquisition Engagement. If the Seller so desires, WSGR shall be permitted, without the need for any future solely in connection with issues that may arise under this Agreement and waiver or consent, to represent any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises of the Seller’s securityholders after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating matter related to this Agreement, or the transactions matters contemplated by this Agreement. Each Agreement or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the parties hereto consents theretoSeller’s securityholders, and waives in any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntaryforegoing cases including, that it has been carefully consideredwithout limitation, and that in any dispute, litigation or other adversary proceeding against, with or involving Purchaser, the parties have consulted with counsel Company or have been advised they should do so in this connectionany of their agents or Affiliates.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, To the extent that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the FirmSeller, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, solely relating relate to the transactions contemplated by this Agreement Acquisition Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the Seller. Neither Purchaser nor any of its Affiliates, including the Company, shall have access to (and Purchaser hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communications or the “Communications”)files or work product of WSGR, includingto the extent that they relate to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, Purchaser acknowledges and agrees, for itself and on behalf of its Affiliates, including the avoidance Company, upon and after the Closing: (i) the Seller and WSGR shall be the sole holders of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the attorney-client privilege if they were being requested of the Seller with respect to the Acquisition Engagement, and neither Purchaser nor any of its Affiliates, including the Company, shall be a holder thereof; (ii) to the extent that files or work product of WSGR in a proceeding respect of the Acquisition Engagement constitute property of the client, only the Seller, shall hold such property rights and have the right to waive or modify such property rights; and (iii) WSGR shall have no duty whatsoever to reveal or disclose any such attorney-client communications, files or work product to Purchaser or any of its Affiliates, including the Company, by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative reason of any attorney-client relationship between WSGR and the Company Holders or otherwise; provided, that, to the extent any communication is unrelated to the Acquisition Engagement, WSGR shall be permitted provide (and the Seller shall instruct WSGR to provide) appropriately redacted versions of such communications, files or work product to Purchaser or its Affiliates, including the Company. Notwithstanding the foregoing, in the event that a dispute arises between any of Purchaser or its Affiliates, including the Company, on one hand and the Seller, on the other hand, concerning the matters contemplated in this Agreement, Purchaser, for itself and on behalf of its Affiliates, including the Company, agrees that Purchaser and its Affiliates, including the Company, shall not offer into evidence or otherwise attempt to use or assert the Communications with respect to foregoing attorney-client communications, files or work product against the Seller.
(c) Without limitation of the foregoing, any claim in connection with other communication between Seller, on the defense one hand, and any representative of any claim by Parent Seller (other than WSGR) or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted third person (other than Purchaser and its Affiliates), relating to prevent disclosure of any Communications the Acquisition Engagement and prior to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement Closing shall be deemed a waiver confidential information of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third partythe Seller, and neither from and after the Stockholder Representative nor Closing, such communications shall be deemed to be confidential information that belong solely to the Seller, for and on behalf of the Seller. Prior to the Closing, the Company shall be entitled to transfer possession of such communications (including any Company Holder shall take any action, or cause tangible and intangible copies of such communications) to the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Seller.
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Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agreesXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and P.C. (“WSGR”) has acted as counsel for the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with this Agreement and the other agreements referenced herein or therein and the transactions contemplated by this Agreementhereby and thereby (the “Merger Engagement”) and, includingin that connection, not as counsel for the avoidance any other Person, including Parent or any of doubt, with respect to any claim for indemnification against its Affiliates. Only the Company Holdersshall be considered a client of WSGR in the Merger Engagement. ParentNotwithstanding anything contained herein to the contrary, if the Surviving CorporationSecurityholders’ Representative so desires, and WSGR shall be permitted, without the Acquired Companies hereby agree that Firm (need for any future waiver or consent, to represent any of the Securityholders’ Representative or any successorCompany Securityholder (each, a “Company Party”) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating matter related to this Agreement, or the transactions matters contemplated by this Agreement. Each Agreement or any other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the parties hereto consents theretoSecurityholders’ Representative and/or any Company Party, and waives in any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntaryforegoing cases including in any dispute, that it has been carefully consideredlitigation or other adversary proceeding against, and that the parties have consulted with counsel or have been advised they should do so in this connectioninvolving Parent, or any of its agents or Affiliates.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, To the extent that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firmany Company Party, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, relate solely relating to the transactions contemplated by this Agreement (Merger Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the “Communications”), includingSecurityholders’ Representative, for and on behalf of the avoidance Company Parties. Neither Parent, nor any of doubtits Affiliates, with respect shall have access to any claim in connection with any claim by such communications or the files or work product of WSGR, to the extent that they relate solely to the Merger Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, Parent or any other Indemnified Party under Article VIII; providedacknowledges and agrees, howeverfor itself and on behalf of its Affiliates, that nothing contained herein upon and after the Closing: (i) the Securityholders’ Representative, for and on behalf of the Company Parties, and WSGR shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holder of the attorney-client privilege if they were being requested in with respect to information that relates solely to the Merger Engagement, and neither Parent nor any of its Affiliates, shall be a proceeding holder thereof; (ii) to the extent that files or work product of WSGR that relate solely to the Merger Engagement constitute property of the Company, only the Securityholders’ Representative, for and on behalf of the other Company Parties, shall hold such property rights and have the right to waive or modify such property rights; and (iii) except as determined by an unrelated third party and the Securityholders’ Representative, WSGR shall have no duty whatsoever to reveal or disclose any such Communications are produced attorney-client communications, files or required work product to be produced in response to such document production requests Parent or discovery. Following the Effective Timeany of its Affiliates, the Stockholder Representative by reason of any attorney-client relationship between WSGR and the Company Holders to the extent relating solely to the Merger Engagement; provided that, to the extent any communication is both related and unrelated to the Merger Engagement, WSGR shall be permitted provide (and the Securityholders’ Representative, for and on behalf of the other Company Parties, shall instruct WSGR to use the Communications with respect provide) copies of such communications, files or work product to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided its Affiliates (with only that such use does not waive any applicable privileges or protections information that can or may be asserted solely relates to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Merger Engagement redacted).
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agreesXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and P.C. (“WSGR”) has acted as counsel for the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with this Agreement any other agreements referenced herein or therein and the transactions contemplated by this Agreementhereby and thereby (the “Merger Engagement”) and, includingin that connection, not as counsel for the avoidance any other Person, including Acquirer or any of doubt, with respect to any claim for indemnification against its Affiliates. Only the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group shall be considered a client of WSGR in the Merger Engagement. Notwithstanding anything contained herein to the contrary, if the Securityholder Representative so desires, WSGR shall be permitted, without the need for any future solely in connection with issues that may arise under this Agreement and waiver or consent, to represent any claims that may be made thereunder pursuant to this Agreementof the Securityholder Representative, including any Company Noteholders, holders of Company Capital Stock, and/or Management Carve-out Participants (each, a dispute that arises “Company Party”) after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating matter related to this Agreement, or the transactions matters contemplated by this Agreement. Each Agreement or any other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the parties hereto consents theretoSecurityholder Representative and/or any Company Party, and waives in any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntaryforegoing cases including in any dispute, that it has been carefully consideredlitigation or other adversary proceeding against, and that the parties have consulted with counsel or have been advised they should do so in this connectioninvolving Acquirer, or any of its agents or Affiliates.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, To the extent that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firmany Company Party, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, relate solely relating to the transactions contemplated by this Agreement (Merger Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the “Communications”), includingSecurityholder Representative, for and on behalf of the avoidance Company Parties. Neither Acquirer, nor any of doubtits Affiliates, with respect shall have access to any claim in connection with any claim by Parent such communications or any other Indemnified Party under Article VIII; providedthe files or work product of WSGR, howeverto the extent that they relate solely to the Merger Engagement, that nothing contained herein whether or not the Closing occurs. Without limiting the generality of the foregoing, Acquirer acknowledges and agrees, for itself and on behalf of its Affiliates, upon and after the Closing: (i) the Securityholder Representative, for and on behalf of the Company Parties, and WSGR shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holders of the attorney-client privilege if they were being requested in with respect to information that relates solely to the Merger Engagement, and neither Acquirer nor any of its Affiliates, shall be a proceeding holder thereof; (ii) to the extent that files or work product of WSGR that relate solely to the Merger Engagement constitute property of the client, only the Securityholder Representative, for and on behalf of the other Company Parties, shall hold such property rights and have the right to waive or modify such property rights; and (iii) WSGR shall have no duty whatsoever to reveal or disclose any such attorney-client communications, files or work product to Acquirer or any of its Affiliates, by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative reason of any attorney-client relationship between WSGR and the Company Holders shall be permitted to use the Communications with respect extent relating solely to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIIIMerger Engagement; provided that, to the extent any communication is both related and unrelated to the Merger Engagement, WSGR shall provide (and the Securityholder Representative, for and on behalf of the other Company Parties, shall instruct WSGR to provide) copies of such communications, files or work product to Acquirer or its Affiliates (with only that such use does not waive any applicable privileges or protections information that can or may be asserted solely relates to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Merger Engagement redacted).
Appears in 1 contract
Samples: Merger Agreement (Identiv, Inc.)
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates agrees that Mxxxxxxx & Fxxxxxxx LLP (“Deal Counsel”) has acted as counsel to the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance negotiation of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and consummation of the transactions contemplated hereby (the “Deal Representation”).
(b) Parent hereby consents and agrees to, and agrees to cause the Surviving Company and each other Acquired Company to consent and agree to, Mxxxxxxx & Fxxxxxxx LLP representing the Shareholders’ Representative and/or any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises of the Shareholders or Optionholders after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, Agreement or the Ancillary Agreements or the transactions contemplated by this Agreement. Each Agreement or the Ancillary Agreements, including with respect to disputes in which the interests of the parties hereto consents theretoShareholders’ Representative and/or Shareholders or Optionholders may be directly adverse to Parent and its Affiliates (including the Surviving Company and each other Acquired Company).
(c) In connection with the foregoing, Parent hereby waives and agrees not to assert, and waives any conflict of interest arising therefrom, agrees to cause the Surviving Company and each such party shall cause any Affiliate thereof to consent other Acquired Company to waive and not to assert, any conflict of interest arising from such representation. Each or in connection with Deal Counsel’s representation of any Acquired Company, the Shareholders’ Representative, the Shareholders or the Optionholders prior to and after the Closing (as applicable) in a matter adverse to Parent, the Surviving Company or any of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that Indemnified Parties because of its representation in connection with the parties have consulted with counsel or have been advised they should do so in this connectionDeal Representation.
(bd) Each of Parent and Company hereby acknowledgesfurther agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Company and each other Acquired Company, that all communications in any form or format whatsoever between or among Deal Counsel and any Acquired Company or any of their respective Representatives with respect to the preparation, negotiation, documentation and consummation of the transactions contemplated by this Agreement and the Ancillary Agreements (collectively, the “Deal Communications”) shall be deemed to be retained and owned collectively by the Shareholders, shall be controlled by the Shareholders’ Representative on behalf of the Shareholders and shall not pass to or be claimed by the Parent or its Affiliates. Notwithstanding anything in this Section 10.18 to the contrary, Deal Communications shall expressly exclude any such communications, information, or documentation that (i) were in the possession of Parent or its Representatives prior to the Agreement Date, (ii) disclosed to Parent or its Representatives by any attorney-client privilegeAcquired Company or its Representatives prior to the Effective Time, attorney work-product protection (iii) are not or were not made in connection with the preparation, negotiation, documentation and expectation of client confidence attaching as a result consummation of the Firm’s representation of transactions contemplated by this Agreement or the Ancillary Agreements, including communications, information, or documentation to the extent discussing any underlying matters about which Deal Counsel provided advice to the Acquired Companies solely in respect of the operations of their respective businesses, assets or liabilities, whether such matters were or were not disclosed in connection with the transactions contemplated hereby or the Ancillary Agreements as a result of the Deal Representation, including the Disclosure Schedules. All Deal Communications that are attorney-client privileged (the “Privileged Deal Communications”) shall remain privileged after the Closing and, except as otherwise provided in this Section 10.18, the privilege and the expectation of client confidence relating thereto shall belong solely to the Shareholders’ Representative and the Shareholders’, shall be controlled by this Agreementthe Shareholders’ Representative on behalf of the Shareholders and shall not pass to or be claimed by Parent or its Affiliates.
(e) In the event that Parent or its Affiliates are legally required by Government Approval or otherwise to access or obtain a copy of all or a portion of the Deal Communications, Parent shall, and all shall cause its Affiliates to, to the extent permitted to do so by applicable Law, (i) promptly notify the Shareholders’ Representative of the existence, terms and circumstances surrounding such request; (ii) consult with the Shareholders’ Representative on the advisability of taking legally available steps (at the Shareholders’ sole cost and expense) to resist or narrow such request; and (iii) if disclosure of such information is required, furnish only that portion of the Deal Communications that, upon the advice of counsel to the party who has received the request, such party is legally compelled to disclose and documents covered advise the Shareholders’ Representative as far in advance as is reasonably practicable of such disclosure as possible so that the Shareholders’ Representative may seek an appropriate protective order or other reliable assurance that confidential treatment will be accorded such confidential information. Except as required in response to a subpoena, third-party discovery request or other legal process, Parent agrees that it will not, and that it will cause its Affiliates not to, (i) intentionally use the Deal Communications, including by such way of seeking to have the Shareholders’ Representative or any Shareholders waive the attorney-client or other privilege, or by otherwise asserting that Parent or the Surviving Company has the right to waive the attorney-client or other privilege or protection shall(ii) seek to obtain the Deal Communications from Deal Counsel.
(f) Parent agrees on behalf of itself, and after the Effective TimeClosing, belong to the Acquired Companies, together with any of their respective affiliates, subsidiaries, successors or assigns, that no person may use or rely on any of the Privileged Deal Communications whether located in the records or e-mail accounts of any of the Acquired Companies or otherwise (including in the knowledge of their officers and be controlled solely by employees), in any action against or involving any of the Stockholder Representativeparties after the Closing. Parent, on behalf of itself and, after the Company HoldersClosing, and the Acquired Companies, agrees not to assert that the privilege has been waived as to the Privileged Deal Communications that may only be waived by located in the Stockholder Representative, on behalf records or e-mail server (or in the knowledge of the Company Holders. Following the Effective Time, Parent -70- officers and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders employees) of any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Acquired Companies.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates Notwithstanding that the Acquired Companies and the Company Holders are clients of has been represented by Xxxxxx LLP (the “Firm”). After ) in the preparation, negotiation and execution of this Agreement, each of the Company, Parent, and Merger Sub agrees that after the Closing, it is possible that Firm will Xxxxxx LLP may represent the Securityholders’ Representative, the Company Holders and/or the Stockholder Representative Securityholders or their affiliates (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement. The Company, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, Parent and the Acquired Companies Merger Sub hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to or otherwise in connection with the transactions contemplated by this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the . The Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representativerepresentative, or Affiliate affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, Agreement or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any The attorney-client privilege, attorney work-product protection protection, and expectation of client confidence attaching as a result of the Firmarising from legal counsel’s representation of the Acquired Companies solely in connection with Company prior to the Effective Time relating to the negotiation, documentation and consummation of the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shallprotection, after the Effective Time, shall belong to and be controlled solely by the Stockholder Representative, on behalf of the Company HoldersSeller Group and may be waived only by Seller Group, and may only be waived by not the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firm, on the one handCompany, and Company and/or the Company Holders, on the other hand, solely relating shall not pass to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim or be claimed or used by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Techne Corp /Mn/)
Waiver of Conflicts Regarding Representation. Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. (a“WSGR”) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and has acted as counsel for the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with this Agreement, the other agreements contemplated by this Agreement and the transactions contemplated hereby and thereby (the “WSGR Acquisition Engagement”) and, in that connection, not as counsel for any other Person, including, without limitation, Parent or any of its Affiliates (including the Surviving Corporation). If the Seller Representative so desires, WSGR shall be permitted, without the need for any future waiver or consent, to represent any of the Seller Representative or the Securityholders after the Closing in connection with any matter related to the matters contemplated by this Agreement or the other agreements contemplated by this Agreement, any other agreement referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the Seller Representative or the Securityholders, in any of the foregoing cases including, for the avoidance of doubtwithout limitation, in any Action against, with respect to any claim for indemnification against the Company Holders. or involving Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (Corporation or any successor) may represent of their agents or Affiliates. To the Seller Group in the future solely in connection with issues extent that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the FirmCompany, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, solely relating relate to the transactions contemplated by this Agreement (WSGR Acquisition Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the “Communications”), includingSeller Representative, for and on behalf of the avoidance Securityholders, and not the Company or Surviving Corporation. Neither Parent nor any of doubtits Affiliates, including the Surviving Corporation, shall have access to (and Parent hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communications or the files or work product of WSGR, to any claim in connection with any claim by the extent that they relate to the WSGR Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, Parent or any other Indemnified Party under Article VIII; providedacknowledges and agrees, howeverfor itself and on behalf of its Affiliates, that nothing contained herein including the Surviving Corporation, upon and after the Closing: (a) the Seller Representative, for and on behalf of Securityholders, and WSGR shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holders of the attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third partyWSGR Acquisition Engagement, and neither the Stockholder Representative Parent nor any Company Holder of its Affiliates, including the Surviving Corporation, shall take any actionbe a holder thereof; and (b) to the extent that files or work product of WSGR in respect of the WSGR Acquisition Engagement constitute property of the client, or cause only the Firm to take any actionSeller Representative, that would reasonably be expected for and on behalf of Securityholders, shall hold such property rights and have the right to waive or modify such property rights; provided, that, to the extent any communication is both related and unrelated to the WSGR Acquisition Engagement, WSGR shall provide (and the Seller Representative, for and on behalf of the Securityholders shall instruct WSGR to provide) appropriately redacted versions of such privilege communications, files or protection work product to any third party. [remainder of page intentionally left blank]Parent or its Affiliates, including the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Infor, Inc.)
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx Ropes & Gxxx LLP (“FirmRopes”). After ) has acted as counsel for the Company (prior to the Closing, it is possible that Firm will represent ) and the Company Holders and/or the Stockholder Representative Seller (individually and collectively, the “Seller GroupCompany Parties” and each a “Company Party”) solely in connection with this Agreement and the transactions contemplated by this Agreementhereby (the “Acquisition Engagement”) and, in that connection, not as counsel for any other Person, including, for the avoidance without limitation, Purchaser or any of doubt, with respect to any claim for indemnification against its Affiliates (including the Company Holdersafter the Closing). Parent, Only the Surviving Corporation, and Company Parties shall be considered clients of Ropes in the Acquired Companies hereby agree that Firm (or any successor) may represent Acquisition Engagement. If the Seller Group in so desires, Ropes shall be permitted, without the need for any future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant waiver or consent, to this Agreement, including a dispute that arises represent Seller after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating matter related to this Agreement, or the transactions matters contemplated by this Agreement. Each Agreement or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the parties hereto consents theretoSeller, and waives in any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntaryforegoing cases including, that it has been carefully consideredwithout limitation, and that in any dispute, litigation or other adversary proceeding against, with or involving Purchaser, the parties have consulted with counsel Company after the Closing or have been advised they should do so in this connectionany of their agents or Affiliates.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, To the extent that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firma Company Party, on the one hand, and Company and/or the Company HoldersRopes, on the other hand, solely relating relate to the transactions contemplated by this Agreement Acquisition Engagement, and constituted privileged communications as of immediately prior to Closing, such communication shall be deemed to be attorney-client confidences that belong solely to the Seller. Except in the event that a dispute arises between Purchaser and the Company after the Closing or their Affiliates, on the one hand, and a third party other than Seller, on the other hand, neither Purchaser nor any of its Affiliates, including the Company after the Closing, shall have access to (and Purchaser hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communications or the “Communications”)files or work product of Ropes, includingto the extent that they relate to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, Purchaser acknowledges and agrees, for itself and on behalf of its Affiliates, including the avoidance Company after the Closing, upon and after the Closing: (i) the Seller and Ropes shall be the sole holders of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the attorney-client privilege if they were being requested of the Company Parties with respect to the Acquisition Engagement, and neither Purchaser nor any of its Affiliates, including the Company after the Closing, shall be a holder thereof; (ii) to the extent that files or work product of Ropes in a proceeding respect of the Acquisition Engagement constitute property of the client, only the Seller shall hold such property rights of any Company Parties and have the right to waive or modify such property rights; and (iii) Ropes shall have no duty whatsoever to reveal or disclose any such attorney-client communications, files or work product to Purchaser or any of its Affiliates, including the Company after the Closing, by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative reason of any attorney-client relationship between Ropes and the Company Holders or otherwise; provided, that, to the extent any communication is both related and unrelated to the Acquisition Engagement, Ropes shall be permitted provide (and the Seller shall instruct Ropes to provide) appropriately redacted versions of such communications, files or work product to Purchaser or its Affiliates, including the Company after the Closing. Notwithstanding the foregoing, in the event that a dispute arises between any of Purchaser or the Company after the Closing or their Affiliates, on one hand, and the Seller, on the other hand, concerning the matters contemplated in this Agreement, Purchaser, for itself and on behalf of its Affiliates and the Company after the Closing and its Affiliates, agrees that Purchaser, the Company after the Closing and their Affiliates shall not offer into evidence or otherwise attempt to use or assert the Communications with respect to any claim in connection with foregoing attorney-client communications, files or work product against the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Seller.
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Waiver of Conflicts Regarding Representation. (a) Each of Recognizing that Pxxx, Wxxxx has acted as legal counsel to the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employeesBlocker Seller, and Affiliates that the Acquired Companies and may be deemed to have acted as legal counsel to the Company Holders are clients of Xxxxxx LLP (“Firm”). After Group prior to the Closing, it is possible and that Firm will represent Pxxx, Wxxxx intends to act as legal counsel to the Blocker Seller after the Closing, Buyer hereby waives and agrees to cause the Company Holders and/or the Stockholder Representative (individually and collectivelyGroup to waive, the “Seller Group”) solely any conflicts that may arise in connection with Pxxx, Wxxxx representing the transactions contemplated by this Agreement, including, for Blocker Seller after the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this AgreementClosing, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, Agreement or the transactions contemplated by this Agreementhereby. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
Buyer (b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliatesand, that any following the Closing, the Company Group) also further agrees that, as to all communications involving attorney-client privilegeconfidences among Paul, attorney work-product protection Weiss, on the one hand, and expectation the Blocker Seller, the Company Group or any of client confidence attaching as a result of their respective Affiliates or Representatives, on the Firm’s representation of the Acquired Companies solely other hand, that relate in connection with any way to the transactions contemplated by this Agreement, the attorney-client privilege and all information the expectation of client confidence belongs to the Blocker Seller and documents covered by such privilege or protection shall, after the Effective Time, belong to and may be controlled solely by the Stockholder Representative, on behalf of the Company Holders, Blocker Seller and may only shall not pass to or be waived claimed by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative Buyer or the Company Holders Group. Notwithstanding the foregoing, in the event that a dispute arises between Buyer, the Blocker Seller or the Company Group and a third party other than the Blocker Seller or any of their Affiliates after the Closing, such Person may assert or waive the attorney-client privilege to prevent disclosure of confidential communications between the Firmby Pxxx, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating Wxxxx to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIIIsuch third party; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and neither Buyer nor the Company Holders shall be permitted to use the Communications Group may waive such privilege with respect to any claim in connection with the defense Blocker Seller without the prior written consent of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Blocker Seller.
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Waiver of Conflicts Regarding Representation. (a) Each of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx (“WSGR”) has acted as counsel for the parties hereto acknowledges Stockholders, the Target (prior to and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that including the Acquired Companies Effective Time) and the Company Holders are clients of Xxxxxx LLP Stockholders’ Agent (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller GroupTarget Parties”) solely in connection with this Agreement and the transactions contemplated hereby (the “Engagement”) and, in that connection, not as counsel for any other person, including, without limitation, Acquiror or any of its Affiliates (including the Surviving Corporation). Only the Target Parties shall be considered clients of WSGR in the Engagement. If the Stockholders’ Agent so desires, WSGR shall be permitted, without the need for any future waiver or consent, to represent any of the Stockholders or the Stockholders’ Agent after the Closing in connection with any matter related to the matters contemplated by this Agreement, any agreement ancillary thereto or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the Stockholders or the Stockholders’ Agent, in any of the foregoing cases including, for the avoidance of doubtwithout limitation, in any dispute, litigation or other adversary proceeding against, with respect to any claim for indemnification against the Company Holders. Parentor involving Acquiror, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (Corporation or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent their agents or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connectionAffiliates.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, To the extent that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firma Target Party, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, solely relating relate to the transactions contemplated by this Agreement (Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the “Communications”), includingStockholders’ Agent, for and on behalf of the avoidance Stockholders. Neither Acquiror nor any of doubtits Affiliates, including the Surviving Corporation, shall have access to (and Acquiror hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communications or the files or work product of WSGR, to any claim in connection with any claim by Parent the extent that they relate to the Engagement, whether or any other Indemnified Party under Article VIII; providednot the Closing occurs. Without limiting the generality of the foregoing, howeverAcquiror acknowledges and agrees, that nothing contained herein for itself and on behalf of its Affiliates, including the Surviving Corporation, upon and after the Closing: (i) the Stockholders’ Agent, for and on behalf of the Stockholders, and WSGR shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holders of the attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following of the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications Target Parties with respect to the Engagement, and neither Acquiror nor any claim of its Affiliates, including the Surviving Corporation, shall be a holder thereof; (ii) to the extent that files or work product of WSGR in connection with respect of the defense Engagement constitute property of a client of WSGR, only the Stockholders’ Agent, for and on behalf of the Stockholders, shall hold such property rights of any claim Target Parties and have the right to waive or modify such property rights; and (iii) WSGR shall have no duty whatsoever to reveal or disclose any such attorney-client communications, files or work product to Acquiror or any of its Affiliates, including the Surviving Corporation, by Parent reason of any attorney-client relationship between WSGR and the Target Parties or otherwise; provided that, to the extent any communication is both related and unrelated to the Engagement, WSGR shall provide (and the Stockholders’ Agent, for and on behalf of the other Target Parties, shall instruct WSGR to provide) appropriately redacted versions of such communications, files or work product to Acquiror or its Affiliates, including the Surviving Corporation. Notwithstanding the foregoing, in the event that a dispute arises between any of Acquiror or the Surviving Corporation or their Affiliates, on one hand, and any of the Stockholders or the Stockholders’ Agent, on the other hand, concerning the matters contemplated in this Agreement, Acquiror, for itself and on behalf of its Affiliates and the Surviving Corporation and its Affiliates, agrees that Acquiror, the Surviving Corporation and their Affiliates shall not offer into evidence or otherwise attempt to use or assert the foregoing attorney-client communications, files or work product against the Stockholders’ Agent or the Stockholders.
(c) Without limitation of the foregoing, any other communication between a Target Party, on the one hand, and any Representative of a Target Party (other than WSGR) or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted third person (other than Acquiror and its Affiliates), prior to prevent disclosure of any Communications the Closing and relating to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement Engagement shall be deemed a waiver confidential information of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third partythe Stockholders, and neither from and after the Stockholder Representative nor Closing, such communications shall be deemed to be confidential information that belong solely to the Stockholders’ Agent, for and on behalf of the Stockholders. Prior to the Closing, the Target shall be entitled to transfer possession of such communications (including any Company Holder tangible and intangible copies of such communications) to the Stockholders’ Agent. Notwithstanding the foregoing, in the event that a dispute arises between any of Acquiror or the Surviving Corporation or their Affiliates, on one hand, and any of the Stockholders or the Stockholders’ Agent, on the other hand, concerning the matters contemplated in this Agreement, Acquiror, for itself and on behalf of its Affiliates and the Surviving Corporation and its Affiliates, agrees that Acquiror, the Surviving Corporation and their Affiliates shall take any action, not offer into evidence or cause otherwise attempt to use or assert the Firm to take any action, that would reasonably be expected to waive any such privilege foregoing communications against the Stockholders’ Agent or protection to any third party. [remainder of page intentionally left blank]the Stockholders.
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Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates Notwithstanding that the Acquired Companies and the Company Holders are clients of Shareholder Representative have been represented by Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group PLC in the future solely in connection with issues that may arise under preparation, negotiation and execution of this Agreement and any related agreements, Buyer agrees that after the Closing Xxxxxx PLC may represent Shareholder Representative in all matters related to this Agreement and any related agreements, including in respect of any indemnification claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after Agreement and any related agreements (the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies“Future Representation”). Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company Buyer hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilegeit has had an opportunity to ask for and has obtained information relevant to such representation, attorney work-product protection and expectation of client confidence attaching as a result including disclosure of the Firm’s reasonably foreseeable adverse consequences of such representation, and it hereby waives any conflict arising out of such Future Representation as such representation may relate to Buyer or any Affiliate of Buyer.
(b) Buyer hereby acknowledges that Xxxxxx PLC, together with the Acquired Companies’ in-house counsel, have represented the Acquired Companies solely and Shareholder Representative in connection with the transactions contemplated by this AgreementAgreement and any related agreements, including the processes and procedures with respect to such transactions and the evaluation and negotiation of such transactions with Buyer and other prospective buyers. The parties agree that any attorney-client privilege as a result of Xxxxxx PLC’s or the Acquired Companies’ in-house general counsel’s representation of the Acquired Companies and Shareholder Representative in connection with the transactions contemplated by this Agreement and any related agreements, and all information and documents communications covered by such attorney-client privilege or protection (the “Covered Communications”) shall, after the Effective TimeClosing, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, Shareholder Representative and may only be waived by Shareholder Representative. Notwithstanding the Stockholder Representativeforegoing, on behalf of in the Company Holders. Following the Effective Timeevent that a dispute arises between Buyer, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the FirmAcquired Company, on the one hand, and Company and/or a Person other than the Company HoldersShareholder Representative, a Shareholder or one of their Affiliates, on the other hand, solely relating to after the transactions contemplated by this Agreement (Closing, Buyer, and the “Communications”)Acquired Companies, includingas applicable, for may assert the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Covered Communications to any such third party. For To the avoidance extent that Buyer receives or takes physical possession of doubtany Covered Communications after the Closing, nothing Buyer shall keep such Covered Communications strictly confidential and such physical possession or receipt shall not, in this Section 10.13 or in this Agreement shall any way, be deemed a waiver by Shareholder Representative or any other Person of any applicable the privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]described in this section.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agreesRecognizing that Lxxxxxxxxx Xxxxxxx LLP has acted as legal counsel to Seller, on its own behalf and on behalf of its directorsParent, members, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After prior to the Closing, it is possible and that Firm will represent Lxxxxxxxxx Xxxxxxx LLP intends to act as legal counsel to Seller and Parent after the Closing, Purchaser hereby waives and agrees to cause the Company Holders and/or the Stockholder Representative (individually and collectivelyto waive, the “Seller Group”) solely any conflict of interest that may arise in connection with Lxxxxxxxxx Xxxxxxx LLP representing Seller and Parent after the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this AgreementClosing, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, Agreement or the transactions contemplated by this Agreementhereby. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
Purchaser (b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliatesand, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of following the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the FirmClosing, the Stockholder Representative or the Company Holders any of the Company) also further agrees that all communications between the Firmamong Lxxxxxxxxx Xxxxxxx LLP, on the one hand, and Company and/or Seller, Parent, the Company HoldersCompany, or any of their respective Affiliates or Representatives, on the other hand, solely relating that relate to the negotiation, documentation and consummation of the transactions contemplated by this Agreement (and that are attorney-client privileged, shall remain privileged after the “Communications”)Closing, includingand the attorney-client privilege and the expectation of client confidence as to such communications belong to Seller and may be controlled by Seller and shall not pass to or be claimed by Purchaser or the Company. Notwithstanding the foregoing, for in the avoidance of doubt, with respect to any claim in connection with any claim by event that a dispute arises between Purchaser or the Company and a third party other than Seller or Parent or any other Indemnified Party under Article VIIIof their respective Affiliates after the Closing, Purchaser and the Company, as applicable, may assert the attorney-client privilege to prevent disclosure of privileged communications by Lxxxxxxxxx Xxxxxxx LLP to such third party; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and neither Purchaser nor the Company Holders may waive such privilege without the prior written consent of Seller. In the event that Purchaser or the Company is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of such privileged communications, Purchaser shall be permitted promptly notify Seller in writing (including by making specific reference to this Section 8.18) so that Seller can seek (at its expense) a protective order and Purchaser agrees to use the Communications with respect all commercially reasonable efforts to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]assist therewith.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agreesXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and P.C. (“WSGR”) has acted as counsel for the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated sale of the Company, including the process by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against which the Company Holders. Parentsolicited, discussed and negotiated strategic alternatives prior to the Surviving Corporationdate hereof, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and the other agreements referenced herein or therein and the transactions contemplated hereby and thereby (the “Merger Engagement”) and, in that connection, not as counsel for any claims that may be made thereunder pursuant to this Agreementother Person, including Acquiror or any of its Affiliates. Only the Company shall be considered a dispute that arises client of WSGR in the Merger Engagement. Notwithstanding anything contained herein to the contrary, if the Securityholder Representative or any Company Securityholder so desires, WSGR shall be permitted, without the need for any future waiver or consent, to represent any of the Securityholder Representative and/or any Company Securityholder (each, a “Company Party”) after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating matter related to this Agreement, or the transactions matters contemplated by this Agreement. Each Agreement or any other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of any Company Party, in any of the parties hereto consents theretoforegoing cases including in any dispute, and waives litigation or other adversary proceeding against, with or involving Acquiror, or any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel its agents or have been advised they should do so in this connectionAffiliates.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, To the extent that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firmany Company Party, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, relate solely relating to the transactions contemplated by this Agreement (Merger Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the “Communications”), includingSecurityholder Representative, for and on behalf of the avoidance Company Parties. Neither Acquiror, nor any of doubtits Affiliates, with respect shall have access to any claim in connection with any claim by Parent such communications or any other Indemnified Party under Article VIII; providedthe files or work product of WSGR, howeverto the extent that they relate solely to the Merger Engagement, that nothing contained herein whether or not the Closing occurs. Without limiting the generality of the foregoing, Acquiror acknowledges and agrees, for itself and on behalf of its Affiliates, upon and after the Closing: (i) the Securityholder Representative, for and on behalf of the Company Parties, and WSGR shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holders of the attorney-client privilege if they were being requested in with respect to information that relates solely to the Merger Engagement, and neither Acquiror nor any of its Affiliates shall be a proceeding holder thereof; (ii) to the extent that files or work product of WSGR that relate solely to the Merger Engagement constitute property of the client, only the Securityholder Representative, for and on behalf of the other Company Parties, shall hold such property rights and have the right to waive or modify such property rights; and (iii) WSGR shall have no duty whatsoever to reveal or disclose any such attorney-client communications, files or work product to Acquiror or any of its Affiliates, by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative reason of any attorney-client relationship between WSGR and the Company Holders shall be permitted to use the Communications extent relating solely to the Merger Engagement; provided, that, to the extent any communication is both related and unrelated to the Merger Engagement, the Securityholder Representative, for and on behalf of the other Company Parties, shall, upon request from Acquiror, instruct WSGR to provide copies of such communications, files or work product to Acquiror or its Affiliates (with respect only that information that solely relates to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Merger Engagement redacted).
Appears in 1 contract
Waiver of Conflicts Regarding Representation. Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, P.C. (a“WSGR”) has represented the Company and the Stockholders’ Representative. Each of the parties hereto acknowledges recognizes the commonality of interest that exists and agreeswill continue to exist until the Effective Time, and the parties hereto agree that such commonality of interest should continue to be recognized after the Effective Time. Specifically, the parties hereto agree that Buyer (including its Affiliates) shall not, and shall not cause the Surviving Company or any of its Affiliates to, seek to have WSGR disqualified from representing the Stockholders’ Representative, any Securityholders or any of their respective Affiliates in connection with any dispute that may arise between the Stockholders’ Representative, any Securityholders or any of their respective Affiliates, on its own behalf and on behalf of its directors, members, partners, officers, employeesthe one hand, and Affiliates that the Acquired Companies Buyer (including its Affiliates), on the other, in connection with this Agreement or the Transactions, including any matter concerning Earn-Out Obligations and the Company Holders are clients of Xxxxxx LLP payment thereof. The parties hereto further agree that (“Firm”). After a) as to all communications among WSGR and the ClosingStockholder’s Representative, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative Securityholders and their respective Affiliates (individually and collectively, the “Seller Group”) solely that relate in connection with any way to the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, attorney-client privilege and the Acquired Companies hereby agree that Firm (or any successor) may represent exception of client confidence belongs solely to the Seller Group in and shall not pass to or be claimed by the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this AgreementBuyer (or its Affiliates), including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though because the interests of Stockholder Representative may be Buyer and its Affiliates were directly adverse to Parent or the Acquired CompaniesCompany, the Securityholders and even though the Firm may have represented Stockholders’ Representative at the Acquired Companies in a matter substantially related to time such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, communications were made and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent the Stockholders’ Representative (and Company hereby acknowledges, on behalf of itself and its Affiliates, that any not Buyer or the Surviving Company) shall have the right to decide whether or not to waive the attorney-client privilege, attorney work-product protection privilege that may apply to any communications between the Company and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, its Affiliates and all information and documents covered by such privilege or protection shall, after WSGR that occurred before the Effective Time. This right to the attorney-client privilege shall exist even if such communications may exist on the Company’s computer system or in documents in the Company’s possession. Notwithstanding the foregoing, belong to and be controlled solely by in the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree event that they will not request from the Firm, the Stockholder Representative any dispute arises between Buyer (including its Affiliates) or the Company Holders any of the communications between the Firmand a third party, on the one hand, and Company and/or the Company Holders, on may assert the other hand, solely relating attorney-client privilege to the transactions contemplated prevent disclosure of confidential communications by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect WSGR to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIIIsuch third party; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as the Company may not waive such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discoverywithout the prior written consent of the Stockholders’ Representative. Following the Effective Time, the Stockholder Representative Buyer and the Company Holders each hereby acknowledge that each of them have had the opportunity to discuss and obtain adequate information concerning the significance and material risks of, and reasonable available alternatives to, the waivers, permissions and other provisions of this Agreement, including the opportunity to consult with counsel other than WSGR. This Section 10.13 shall be permitted to use the Communications with respect to any claim in connection with the defense irrevocable, and no term of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure amended, waived or modified, without the prior written consent of any Communications to any third party, the Stockholders’ Representative and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]WSGR.
Appears in 1 contract
Samples: Merger Agreement (Plug Power Inc)
Waiver of Conflicts Regarding Representation. Recognizing that Xxxxx Xxxx PLC (a“Xxxxx Hill”) Each has acted as legal counsel to Seller, its Affiliates and its respective Representatives (collectively, the “Seller Parties”), and may be deemed to have acted as legal counsel to the Companies prior to the Closing, and that Xxxxx Xxxx intends to act as legal counsel to Seller Parties after the Closing, (i) each of Buyer and the parties hereto acknowledges and agreesCompanies hereby waives, on its own behalf and agrees to cause its Affiliates to waive, any conflicts that may arise in connection with Xxxxx Hill representing the Seller Parties after the Closing and (ii) in the event that a dispute arises between or among any of Buyer or any of its Affiliates (including, after the Closing, the Companies and the Fabri-Kal Subsidiaries) and any Seller Parties (including, prior to the Closing, the Companies and the Fabri-Kal Subsidiaries), Buyer, the Companies and each of the other Parties hereby agree that Xxxxx Xxxx may represent Seller Parties in such dispute even though the interests of Seller Parties may be directly adverse to Buyer or its Affiliates (including, after the Closing, the Companies or any Fabri-Kal Subsidiary), and even though Xxxxx Hill may have represented the Companies or any Fabri-Kal Subsidiary in a matter substantially related to such dispute, or may be handling ongoing matters for Seller Parties, Buyer and, after the Closing, the Companies, waive, on behalf of its directorsthemselves and each of their respective Affiliates, membersany conflict of interest in connection with such representation by Xxxxx Xxxx. Buyer and, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After after the Closing, it is possible the Companies, further agree that, as to all communications among Xxxxx Hill and the Companies or any Fabri-Kal Subsidiary, and all attorney work product that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely relate in connection with any way to the transactions contemplated by this Agreement, includingall rights therein, for including the avoidance attorney-client privilege, the expectation of doubt, with respect client confidence and all other rights to any claim for indemnification against evidentiary privilege belong solely to the Company Holders. ParentSeller Parties and shall solely be controlled by Seller Parties and shall not pass to or be claimed by Buyer, or, after the Closing, the Surviving CorporationCompanies or any Fabri-Kal Subsidiary. The Parties agree to take, and to cause their respective Affiliates to take, all steps necessary to implement the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under intent of this Agreement and any claims that may be made thereunder pursuant to this AgreementSection 7.10 , including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companiesif so requested. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby Buyer acknowledges, on behalf of itself and, after the Closing, the Companies, the Fabri-Kal Subsidiaries and its any of their respective Affiliates, that any attorney-client privilegeeach has had the opportunity to discuss and obtain adequate information concerning the significance and material risks of, attorney work-product protection and expectation reasonable available alternatives to, the waivers, permissions and other provisions of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, including the opportunity to consult with counsel other than Xxxxx Xxxx. This Section 7.10 is for the benefit of Xxxxx Hill (including its partners and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”employees), including, for the avoidance which is an intended third-party beneficiary of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]7.10.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. Recognizing that Fenwick & West LLP (a“Fenwick”) Each has acted as legal counsel to the Company and the Company Subsidiaries prior to the Closing, and that Fenwick intends to act as legal counsel to certain of the parties hereto acknowledges Company Securityholders, the Securityholder Representative and/or their respective Affiliates after the Closing, (i) each of the Buyer and agrees, Merger Sub (on its own behalf and and, as of the Closing, on behalf of its directorsthe Surviving Company and each Subsidiary of the Surviving Company) hereby waives any conflicts that may arise in connection with Fenwick representing the Company Securityholders, members, partners, officers, employeesthe Securityholder Representative and their respective Affiliates after the Closing, and (ii) each of the Buyer and Merger Sub (on its own behalf and, as of the Closing, on behalf of the Surviving Company and each Subsidiary of the Surviving Company) hereby agrees that, in the event that a dispute arises between or among the Buyer or its Affiliates that (including, after the Acquired Companies Closing, the Surviving Company and each Subsidiary of the Surviving Company) and the Company Holders are clients of Xxxxxx LLP Securityholders, the Securityholder Representative or their respective Affiliates (“Firm”). After including, prior to the Closing, it is possible that Firm will the Company and the Company Subsidiaries), Fenwick may represent the Company Holders and/or the Stockholder Representative (individually and collectivelySecurityholders, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (Securityholder Representative or any successor) may represent the Seller Group of their respective Affiliates in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a such dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder the Company Securityholders, the Securityholder Representative or such Affiliate may be directly adverse to Parent the Buyer or any of their respective Affiliates (including, after the Acquired CompaniesClosing, the Surviving Company and any Subsidiary of the Surviving Company) and even though the Firm Fenwick may have represented the Acquired Companies Company or the Company Subsidiaries in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion dispute, each of the Seller Group or any directorBuyer and Merger Sub (on its own behalf and, member, partner, officer, employee, Representative, or Affiliate as of the Seller GroupClosing, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each on behalf of the parties hereto consents theretoSurviving Company and each Subsidiary of the Surviving Company), and on behalf of each of their respective Affiliates, hereby waives any conflict of interest arising therefrom, and each in connection with such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representationrepresentation by Xxxxxxx. Each of the parties hereto acknowledges that such consent Buyer and waiver is voluntaryMerger Sub (on its own behalf and, that it has been carefully considered, and that as of the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledgesClosing, on behalf of itself the Surviving Company and its Affiliateseach Subsidiary of the Surviving Company) further agrees that, as to all communications among Fenwick, the Company or the Company Subsidiaries that relate in any way to the negotiations of this Agreement or otherwise relate to the Merger, any potential sale of the Company or the Company Subsidiaries or the transactions contemplated hereby, the attorney-client privilege, attorney work-product protection and the expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such other rights to any evidentiary privilege or protection shall, after the Effective Time, belong to the Company Securityholders and the Securityholder Representative and may be controlled solely by the Stockholder RepresentativeCompany Securityholders and the Securityholder Representative and shall not pass to or be claimed by the Buyer, on behalf the Surviving Company or any of their respective Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Buyer, the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the FirmSubsidiaries, on the one hand, and Company and/or a third party (other than the Company HoldersSecurityholder Representative or any of its Affiliates), on the other hand, solely relating after the Closing, such Person may assert the attorney-client privilege to the transactions contemplated prevent disclosure of confidential communications by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect Xxxxxxx to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIIIsuch third party; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests if such dispute may involve the Company Securityholders or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced the Securityholder Representative, neither the Buyer nor the Company or required to be produced in response to such document production requests or discovery. Following the Effective TimeCompany Subsidiaries (including, after the Closing, the Stockholder Surviving Company and any Subsidiary of the Surviving Company) may waive such privilege without the prior written consent of the Securityholder Representative. The Parties agree to take all steps reasonably necessary to implement the intent of this Section 7.8. Each of the Buyer and Merger Sub (on its own behalf and, as of the Closing, on behalf of the Surviving Company and each Subsidiary of the Surviving Company) acknowledges that it has had the opportunity to discuss and obtain adequate information concerning the significance and material risks of, and reasonable available alternatives to, the waivers, permissions and other provisions of this Agreement, including the opportunity to consult with counsel other than Company’s counsel. This Section 7.8 is for the benefit of the Company Securityholder’s, the Securityholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense their respective Affiliates, and Fenwick (including its shareholders and employees), each of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure which are intended third-party beneficiaries of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]7.8.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. Recognizing that Xxxx, Xxxxx has acted as legal counsel to the Sellers and their Affiliates (aincluding the Business Companies) Each prior to the Closing, and that Xxxx, Xxxxx intends to act as legal counsel to the Sellers and their Affiliates after the Closing, (i) Buyer (on behalf of itself and the Business Companies, following the Closing) hereby waives on its own behalf, and agrees to cause its Affiliates to waive, any conflicts that may arise in connection with Xxxx, Xxxxx representing the Sellers and their Affiliates after the Closing, and (ii) Buyer (on behalf of itself and the Business Companies, following the Closing) hereby agrees that, in the event that a dispute arises between or among any of Buyer or any of its Affiliates (including, after the Closing, the Business Companies) and the Sellers or any of their Affiliates (including, prior to the Closing, the Business Companies), each of the parties hereto acknowledges and agreesagrees that Xxxx, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) Xxxxx may represent the Seller Group Sellers or any of their Affiliates in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a such dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative the Sellers or such Affiliate may be directly adverse to Parent Buyer or any of its Affiliates (including, after the Acquired Closing, the Business Companies), and even though the Firm Xxxx, Xxxxx may have represented the Acquired Business Companies in a matter substantially related to such dispute dispute, or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, Sellers or the transactions contemplated by this Agreement. Each Business Companies, Buyer (on behalf of itself and the parties hereto consents theretoBusiness Companies, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of following the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(bClosing) Each of Parent and Company hereby acknowledgeswaives, on behalf of itself and each of its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation conflict of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely interest in connection with such representation by Xxxx, Xxxxx. Buyer (on behalf of itself and the Business Companies, following the Closing) further agrees that, as to all communications among any of Xxxx, Xxxxx and any of the Business Companies that relate in any way to the transactions contemplated by this Agreement, the attorney-client privilege, the expectation of client confidence and all information and documents covered by such other rights to any evidentiary privilege or protection shall, after the Effective Time, belong to the Sellers and may be controlled solely by the Stockholder Representative, on behalf of the Company Holders, Sellers and may only shall not pass to or be waived claimed by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative Buyer or the Company Holders any of the communications between the Firm, on the one handBusiness Companies. The parties hereto agree to take, and Company and/or to cause their respective Affiliates to take, all steps necessary to implement the Company Holdersintent of this Section 11.17. Buyer acknowledges that it has had the opportunity to discuss and obtain adequate information concerning the significance and material risks of, on and reasonable available alternatives to, the waivers, permissions and other handprovisions of this Agreement, solely relating including the opportunity to consult with counsel other than Xxxx, Xxxxx. This Section 11.17 is for the transactions contemplated by this Agreement benefit of the Sellers, their Affiliates, and Xxxx, Xxxxx (the “Communications”including its partners and employees), including, for the avoidance each of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorneywhich are intended third-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense beneficiaries of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]11.17.
Appears in 1 contract
Samples: Securities Purchase Agreement (Martin Marietta Materials Inc)
Waiver of Conflicts Regarding Representation. Recognizing that Ropes & Xxxx LLP has acted as legal counsel to Rave and its Affiliates and may be deemed to have acted as legal counsel to the Acquired Companies prior to the Closing, and that Ropes & Xxxx LLP intends to act as legal counsel to Rave and its Affiliates after the Closing, the Company hereby waives (a) Each of the parties hereto and Buyer hereby acknowledges and agreesagrees to such waiver), on its own behalf and on behalf of its directorscurrent and future Subsidiaries, members, partners, officers, employees, and Affiliates any conflicts that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely may arise in connection with Ropes & Xxxx LLP representing Rave and its Affiliates after the Closing in connection with this Agreement, the Escrow Agreement or the transactions contemplated by this Agreementhereby and thereby. Buyer hereby agrees that, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including event a dispute that arises after the Closing in connection with this Agreement, the Escrow Agreement or the transactions contemplated hereby and thereby between Parent Buyer and/or any of the Acquired Companies, on the one hand, and Rave and/or its Affiliates, on the other hand, Ropes & Xxxx LLP may represent Rave and/or its Affiliates in such dispute (and/or Companyincluding in any Action arising therefrom) and Stockholder Representative, even though the interests of Stockholder Representative Rave may be directly adverse to Parent or Buyer and/or any of the Acquired Companies, and even though the Firm Ropes & Xxxx LLP may have represented one or more of the Acquired Companies in a matter substantially related to such dispute or dispute. Buyer and the Company further agree that, as to all communications between Ropes & Xxxx LLP, any of the Acquired Companies and Rave that relate in any way to this Agreement, the Escrow Agreement and the transactions contemplated hereby and thereby, the attorney-client privilege and the expectation of client confidence belongs to Rave and may be handling ongoing matters for controlled by Rave, and shall not pass to or be claimed or controlled by Buyer or any of the Acquired Companies. Firm (Notwithstanding the foregoing, in the event a dispute arises between Buyer or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by and a party other than a party to this Agreement, and all information and documents covered by such privilege or protection shall, Agreement after the Effective TimeClosing, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the Acquired Companies may assert the attorney-client privilege to prevent disclosure of confidential communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating by Ropes & Xxxx LLP to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIIIsuch third party; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following none of the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not Acquired Companies may waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder without the prior written consent of page intentionally left blank]Rave.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Carmike Cinemas Inc)
Waiver of Conflicts Regarding Representation. (a) Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank].
Appears in 1 contract
Samples: Merger Agreement (NetApp, Inc.)
Waiver of Conflicts Regarding Representation. Notwithstanding anything to the contrary in any other agreement, recognizing that (a) Each of Weil, Gotshal & Xxxxxx LLP (“Weil”) has acted as legal counsel to the parties hereto acknowledges Seller, the Company and agreesthe Company Subsidiaries and their respective Affiliates in connection with the Acquisition and the other transactions contemplated hereby, and that Weil intends to continue to act as legal counsel to the Seller, the Company and the Company Subsidiaries prior to Closing and as legal counsel to Seller and its Affiliates after the Closing and (b) Ernst & Young LLP (“E&Y”) has provided professional services to the Seller, the Company and the Company Subsidiaries and their respective Affiliates in connection with the Acquisition and the other transactions contemplated hereby, and that E&Y intends to continue to provide professional services to the Seller, the Company and the Company Subsidiaries and their respective Affiliates prior to Closing and to provide professional services to the Seller and its Affiliates after the Closing, the Company hereby waives, on its own behalf and on behalf of its directorsAffiliates, membersany conflicts that have arisen or may arise in connection with Weil and/or E&Y representing the Seller, partners, officers, employees, and Affiliates that the Acquired Companies Company and the Company Holders are clients Subsidiaries and their respective Affiliates, prior to, at or after the Closing or the Seller in contesting and settling any claims arising out of Xxxxxx LLP (“Firm”)this Agreement or resolving any other disputes hereunder, including representing the Seller and its Affiliates against the Company, any Company Subsidiary and/or its Affiliates in litigation, arbitration or mediation in connection therewith. After the Closing, it is possible that Firm will represent The Purchaser and the Company Holders and/or each consents, on its own behalf and on behalf of its Affiliates, to the Stockholder Representative (individually continued representation of the Seller and collectively, the “Seller Group”) solely its Affiliates by Weil and E&Y in connection with the transactions contemplated by this AgreementAcquisition notwithstanding the fact that Weil and/or E&Y may have represented, includingand may currently or in the future represent, for the avoidance Company, the Purchaser and/or any of doubt, their respective Affiliates with respect to any claim for indemnification against unrelated matters. In addition, the Purchaser and the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies each hereby agree that Firm (or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such its consent and waiver under this Section 7.7 is voluntary, that it has been carefully consideredvoluntary and informed, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent Purchaser and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firm, on the one hand, and Company and/or the Company Holders, on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, have each obtained independent legal advice with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party this consent and such Communications are produced or required to be produced in response to such document production requests or discoverywaiver. Following the Effective Time, the Stockholder Representative The Purchaser and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense each agree that Weil and E&Y are express third party beneficiaries of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]7.7.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of Parent and the parties hereto acknowledges and agreesCompany hereby agree, on its their own behalf and on behalf of its the Surviving Corporation and their current and future directors, managers, equityholders, stockholders, members, partners, officers, employees, employees and Affiliates that the Acquired Companies and the Company Holders are clients each of Xxxxxx LLP their successors and assigns (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectivelyall such Persons, the “Seller GroupWaiving Parties”) solely in connection with the transactions contemplated by this Agreement), including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm Xxxxxxxx & Xxxxx LLP (or any successorsuccessor thereto) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (Securityholders or any successor) may serve as counsel to all of their respective, direct or a portion of the Seller Group indirect, directors, managers, members, stockholders, partners, officers, employees, equityholders or any directorAffiliates, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any dispute, litigation, claim claim, proceeding or obligation arising out of or relating to this Agreement, any agreement entered into in connection herewith or the transactions contemplated by this Agreement. Each hereby notwithstanding its representation of the parties hereto consents thereto, and waives Company or any conflict of interest arising therefromSubsidiary thereof, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and the Company hereby acknowledges, on behalf of itself and its Affiliatesthe Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Each of Parent and the Company, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among Xxxxxxxx & Xxxxx LLP, the Company, any Subsidiary of the Company and/or any Securityholder and/or any director, officer, manager, member, partner, stockholder, equityholder, employee or representative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or proceeding arising out of or relating to, this Agreement, any agreement entered into in connection herewith, the transactions contemplated hereby or any matter relating to any of the foregoing, in each case prior to the Closing Date, may be privileged communications and any corresponding attorney-client privilege, attorney work-product protection and privilege and/or expectation of client confidence attaching as a result belongs solely to the Securityholders and shall be exclusively controlled thereby and shall not pass to or be claimed by Parent or the Surviving Corporation; provided, however, that in the event of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firmany dispute between Parent, the Stockholder Representative Surviving Corporation or the Company Holders any of the communications between the Firmtheir respective Subsidiaries, on the one hand, and Company and/or a third party (other than a party to the Company HoldersAgreement), on the other hand, solely relating to the transactions contemplated by this Agreement (the “Communications”), including, for the avoidance of doubt, with respect to any claim in connection with any claim by Parent or any other Indemnified Party under Article VIII; provided, however, that nothing contained herein shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following after the Effective Time, the Stockholder Representative Securityholders shall not waive such attorney-client privilege without the prior written consent of Parent. Without limiting the generality of the foregoing, from and after the Effective Time, (i) the direct and indirect holders of Company Common Stock and their respective Affiliates (and not the Surviving Corporation and the Subsidiaries) shall be the sole holders of the attorney-client privilege with respect to such engagement, and none of the Surviving Corporation or the Subsidiaries shall be a holder thereof (except as against third parties (other than a party to the Agreement)), (ii) to the extent that files of Xxxxxxxx & Xxxxx LLP in respect of such engagement constitute property of the client, only the direct and indirect holders of Company Common Stock and their respective Affiliates (and not the Surviving Corporation and the Subsidiaries) shall hold such property rights and (iii) Xxxxxxxx & Xxxxx LLP shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Surviving Corporation or any of the Subsidiaries by reason of such engagement between Xxxxxxxx & Xxxxx LLP and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges of the Subsidiaries or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]otherwise.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. (a) Each of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx (“WSGR”) has acted as counsel for the parties hereto acknowledges and agreesCompany Securityholders, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies Company and the Company Holders are clients of Xxxxxx LLP Securityholder Representative Committee (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller GroupCompany Parties”) solely in connection with this Agreement and the transactions contemplated hereby (the “Acquisition Engagement”) and, in that connection, not as counsel for any other Person, including Parent or any of its Affiliates (including the Surviving Corporation). Only the Company Parties shall be considered clients of WSGR in the Acquisition Engagement. If the Securityholder Representative Committee so desires, WSGR shall be permitted, without the need for any future waiver or consent, to represent any of the Company Parties after the Closing in connection with any matter related to the matters contemplated by this AgreementAgreement or any other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the Company Parties, includingin any of the foregoing cases including in any dispute, for the avoidance of doubtlitigation or other adversary proceeding against, with respect to any claim for indemnification against the Company Holders. or involving Parent, the Surviving Corporation, and the Acquired Companies hereby agree that Firm (Corporation or any successor) may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, including a dispute that arises after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent their agents or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating to this Agreement, or the transactions contemplated by this Agreement. Each of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connectionAffiliates.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, To the extent that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the communications between the Firma Company Party, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, solely relating relate to the transactions contemplated by this Agreement (Acquisition Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the “Communications”), includingSecurityholder Representative Committee, for and on behalf of the avoidance Company Parties. Neither Parent nor any of doubtits Affiliates, including the Surviving Corporation, shall have access to (and Parent hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communications or the files or work product of WSGR, to any claim in connection with any claim by the extent that they relate to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, Parent or any other Indemnified Party under Article VIII; providedacknowledges and agrees, howeverfor itself and on behalf of its Affiliates, that nothing contained herein including the Surviving Corporation, upon and after the Closing: (i) the Securityholder Representative Committee, for and on behalf of the Company Parties, and WSGR shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holders of the attorney-client privilege if they were being requested with respect to the Acquisition Engagement, and neither Parent nor any of its Affiliates, including the Surviving Corporation, shall be a holder thereof; (ii) to the extent that files or work product of WSGR in a proceeding respect of the Acquisition Engagement constitute property of the client, only the Securityholder Representative Committee, for and on behalf of the other Company Parties, shall hold such property rights and have the right to waive or modify such property rights; and (iii) WSGR shall have no duty whatsoever to reveal or disclose any such attorney-client communications, files or work product to Parent or any of its Affiliates, including the Surviving Corporation, by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative reason of any attorney-client relationship between WSGR and the Company Holders or otherwise; provided that, to the extent any communication is both related and unrelated to the Acquisition Engagement, WSGR shall be permitted provide (and the Securityholder Representative Committee, for and on behalf of the other Company Parties, shall instruct WSGR to provide) appropriately redacted versions of such communications, files or work product to Parent or its Affiliates, including the Surviving Corporation. Notwithstanding and without limiting the foregoing, in the event that a dispute arises between any of Parent or the Surviving Corporation or their Affiliates, on one hand, and any of the Company Parties, on the other hand, concerning the matters contemplated in this Agreement, Parent, for itself and on behalf of its Affiliates and the Surviving Corporation and its Affiliates, agrees that Parent, the Surviving Corporation and their Affiliates shall not offer into evidence or otherwise attempt to use or assert the Communications with respect to any claim in connection with foregoing attorney-client communications, files or work product against the defense of any claim by Parent Securityholder Representative Committee or any the other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third party. [remainder of page intentionally left blank]Parties.
Appears in 1 contract
Waiver of Conflicts Regarding Representation. Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. (a“WSGR”) Each has acted as counsel for certain of the parties hereto acknowledges and agreesStockholders, on its own behalf and on behalf of its directors, members, partners, officers, employees, and Affiliates that the Acquired Companies Company and the Company Holders are clients of Xxxxxx LLP (“Firm”). After the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Seller Representative (individually and collectively, the “Seller GroupCompany Parties”) solely in connection with this Agreement, the other Transaction Documents and the transactions contemplated by this Agreementhereby and thereby (the “Acquisition Engagement”) and, in that connection, not as counsel for any other Person, including, for the avoidance without limitation, Buyer or any of doubt, with respect to any claim for indemnification against the Company Holders. Parent, its Affiliates (including the Surviving Corporation, and ). Only the Acquired Companies hereby agree that Firm (or any successor) may represent Company Parties shall be considered clients of WSGR in the Acquisition Engagement. If the Seller Group in Representative so desires, WSGR shall be permitted, without the need for any future solely in connection with issues that may arise under this Agreement and waiver or consent, to represent any claims that may be made thereunder pursuant to this Agreementof the Seller Representative, including a dispute that arises the Stockholders, the Optionholders or the Indemnifying Parties after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating matter related to this Agreement, or the transactions matters contemplated by this Agreement. Each Agreement or the other Transaction Documents, any other agreements referenced herein or therein or any disagreement or dispute relating thereto and may in connection therewith represent the agents or Affiliates of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Seller Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the FirmStockholders, the Stockholder Representative Optionholders or the Company Holders Indemnifying Parties, in any of the foregoing cases including, without limitation, in any dispute, litigation or other adversary proceeding against, with or involving Buyer, the Surviving Corporation or any of their agents or Affiliates. To the extent that communications between the Firma Company Party, on the one hand, and Company and/or the Company HoldersWSGR, on the other hand, solely relating relate to the transactions contemplated by this Agreement (Acquisition Engagement, such communication shall be deemed to be attorney-client confidences that belong solely to the “Communications”), includingSeller Representative, for and on behalf of the avoidance Securityholders, and not the Company or Surviving Corporation. Neither Buyer nor any of doubtits Affiliates, including the Surviving Corporation, shall have access to (and Buyer hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communications or the files or work product of WSGR, to any claim in connection with any claim by Parent the extent that they relate to the Acquisition Engagement, whether or any other Indemnified Party under Article VIII; providednot the Closing occurs. Without limiting the generality of the foregoing, howeverBuyer acknowledges and agrees, that nothing contained herein for itself and on behalf of its Affiliates, including the Surviving Corporation, upon and after the Closing: (i) the Seller Representative, for and on behalf of the Stockholders, the Optionholders or the Indemnifying Parties, and WSGR shall prevent Parent from requesting any Communications in connection with document production requests or discovery in any proceeding so long as such Communications would not be subject to an the sole holders of the attorney-client privilege if they were being requested with respect to the Acquisition Engagement, and neither Buyer nor any of its Affiliates, including the Surviving Corporation, shall be a holder thereof; (ii) to the extent that files or work product of WSGR in a proceeding by an unrelated third party respect of the Acquisition Engagement constitute property of the client, only the Seller Representative, for and such Communications are produced or required to be produced in response to such document production requests or discovery. Following on behalf of the Effective TimeStockholders, the Stockholder Representative Optionholders or the Indemnifying Parties, shall hold such property rights and have the right to waive or modify such property rights; and (iii) WSGR shall have no duty whatsoever to reveal or disclose any such attorney-client communications, files or work product to Buyer or any of its Affiliates, including the Surviving Corporation, by reason of any attorney-client relationship between WSGR and the Company Holders or otherwise; provided, that, to the extent any communication is both related and unrelated to the Acquisition Engagement, WSGR shall be permitted provide (and the Seller Representative, for and on behalf of the Securityholders or Indemnifying Parties, shall instruct WSGR to provide) appropriately redacted versions of such communications, files or work product to Buyer or its Affiliates, including the Surviving Corporation. Notwithstanding and without limiting the foregoing, in the event that a dispute arises between any of Buyer or the Surviving Corporation or their Affiliates, on one hand, and any of the Indemnifying Parties, Securityholders or Seller Representative (on behalf of the Indemnifying Parties), on the other hand, concerning the matters contemplated in this Agreement, Buyer, for itself and on behalf of its Affiliates and the Surviving Corporation and its Affiliates, agrees that Buyer, the Surviving Corporation and their Affiliates shall not offer into evidence or otherwise attempt to use or assert the Communications with respect to any claim in connection with foregoing attorney-client communications, files or work product against the defense of any claim by Parent Seller Representative, the Stockholders, the Optionholders or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party. For the avoidance of doubt, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any action, that would reasonably be expected to waive any such privilege or protection to any third partyIndemnifying Parties. [remainder of page intentionally left blankSIGNATURE PAGE FOLLOWS]
Appears in 1 contract
Waiver of Conflicts Regarding Representation. WSGR and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP (a"Xxxxxxxxx") Each have acted as counsel and EY (which, for the purposes of this Section 8.14 shall refer only to the parties hereto acknowledges and agrees, on its own behalf and on behalf team of its directors, members, partners, officers, employees, and Affiliates that EY professionals who have provided advice to the Acquired Companies Securityholders and the Company Holders are clients of Xxxxxx LLP prior to the date hereof, and not to any EY professionals who have been or may be retained by Parent, Merger Sub or their Affiliates (“Firm”). After including,after the Closing, it is possible that Firm will represent the Company Holders and/or the Stockholder Representative (individually and collectively, the “Seller Group”) solely in connection with the transactions contemplated by this Agreement, including, for the avoidance of doubt, with respect to any claim for indemnification against the Company Holders. Parent, the Surviving Corporation, )) has provided tax and accounting advice for certain of the Securityholders and the Acquired Companies hereby agree that Firm Company (or any successorcollectively, the "Company Parties") may represent the Seller Group in the future solely in connection with issues that may arise under this Agreement and any claims that may be made thereunder pursuant to this Agreement, the Related Agreements and the Transactions (the "Acquisition Engagement") and, in that connection, not as counsel or advisor of tax and accounting related matters for any other Person, including, without limitation, Parent or any of its Affiliates (including a dispute that arises the Surviving Corporation). Only the Company Parties shall be considered clients of WSGR, Pillsbury or EY in the Acquisition Engagement. WSGR, Pillsbury and EY shall be permitted, without the need for any future waiver or consent, to represent any of the Securityholders after the Closing between Parent (and/or Company) and Stockholder Representative, even though the interests of Stockholder Representative may be directly adverse to Parent or the Acquired Companies, and even though the Firm may have represented the Acquired Companies in a matter substantially related to such dispute or may be handling ongoing matters for the Acquired Companies. Firm (or any successor) may serve as counsel to all or a portion of the Seller Group or any director, member, partner, officer, employee, Representative, or Affiliate of the Seller Group, solely in connection with any litigation, claim or obligation arising out of or relating matter related to this Agreement, or the transactions matters contemplated by this Agreement. Each Agreement or the Related Agreements, any other agreements referenced hereinor therein or any disagreement or disputerelating thereto and may in connection therewith represent the agents or Affiliates of the parties hereto consents thereto, and waives any conflict of interest arising therefrom, and each such party shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. Each of the parties hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the parties have consulted with counsel or have been advised they should do so Securityholders in this connection.
(b) Each of Parent and Company hereby acknowledges, on behalf of itself and its Affiliates, that any attorney-client privilege, attorney work-product protection and expectation of client confidence attaching as a result of the Firm’s representation of the Acquired Companies solely in connection with the transactions contemplated by this Agreement, and all information and documents covered by such privilege or protection shall, after the Effective Time, belong to and be controlled solely by the Stockholder Representative, on behalf of the Company Holders, and may only be waived by the Stockholder Representative, on behalf of the Company Holders. Following the Effective Time, Parent -70- and Company agree that they will not request from the Firm, the Stockholder Representative or the Company Holders any of the foregoing cases including, without limitation, in any dispute, litigation or other adversary proceeding against, with or involvingParent, the Surviving Corporation or any of their agents or Affiliates. To the extent that communications between the Firma Company Party, on the one hand, and Company and/or the Company HoldersWSGR, Pillsbury or EY, on the other hand, solely relating relate to the transactions contemplated by this Agreement Acquisition Engagement, such communication shall be deemedto be attorney-client confidences or accountant-client privileges, respectively, that belong solely to the Securityholders, and not the Company or Surviving Corporation. Neither Parent nor any of its Affiliates, including the Surviving Corporation, shall have access to (and Parent hereby waives, on behalf of each, any right of access it may otherwise have with respect to) any such communications or the “Communications”)files or work product of WSGR, includingPillsbury or EY, to the extent that they relate to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, Xxxxxx acknowledges and agrees, for itself and on behalf of its Affiliates, including the avoidance Surviving Corporation, upon and after the Closing: (i) the **MSPSC Electronic Copy ** 2016-UA-186 Filed on 09/23/2016 ** Securityholders and WSGR, Pillsbury or EY shall be the sole holders of doubtthe attorney-client privilege or accountant-client privilege, respectively, with respect to the Acquisition Engagement, and neither Parent nor any claim of its Affiliates, including the Surviving Corporation, shall be a holder thereof; (ii) to the extent that files or work product of WSGR, Pillsbury or EY in connection with respect of the Acquisition Engagement constitute property of the client, only the Securityholders shall hold such property rights and have the right to waive or modify such property rights; and (iii) WSGR, Pillsbury or EY shall have no duty whatsoever to reveal or disclose any claim by such attorney-client or accountant-client communications, files or work product to Parent or any of its Affiliates, including the Surviving Corporation, by reason of any attorney- client relationship or accountant-client relationship between WSGR, Pillsbury or EY, respectively, and the Company or otherwise; provided that, to the extent any communication is both related and unrelated to the Acquisition Engagement, WSGR, Pillsbury or EY shall provide appropriately redacted versions of such communications, files or work product to Parent or its Affiliates, including the Surviving Corporation. Notwithstanding and without limiting the foregoing, in the event that a disputearises betweenany of Parent or the Surviving Corporation or their Affiliates, on one hand, and any of the Securityholders, on the other Indemnified Party under Article VIII; providedhand, howeverconcerning the matters contemplated in this Agreement, Parent, for itself and on behalf of its Affiliates and the Surviving Corporation and its Affiliates, agrees that nothing Parent, the Surviving Corporation and their Affiliates shall not offer into evidence or otherwise attempt to use or assert the foregoing attorney-client communications or accountant-elient communications, files or work product against the Securityholders. Notwithstanding anything to the contrary contained herein herein, (i) the foregoing waivers and acknowledgements of retention shall prevent Parent from requesting not extend to any Communications communication not involving the Acquisition Engagement, or to communications with any Person other than WSGR, Pillsbury or EY and (ii) in connection with document production requests the event that after the Closing a dispute arises between Parent, the Surviving Corporation or discovery in any proceeding so long of their respective Affiliates and a Person other than a Securityholder or any of its Affiliates, then Parent, the Surviving Corporation or any of their respective Affiliates, as such Communications would not be subject to an applicable, may assert the attorney-client privilege if they were being requested in a proceeding by an unrelated third party and such Communications are produced or required to be produced in response to such document production requests or discovery. Following the Effective Time, the Stockholder Representative and the Company Holders shall be permitted to use the Communications with respect to any claim in connection with the defense of any claim by Parent or any other Indemnified Party under Article VIII; provided that such use does not waive any applicable privileges or protections that can or may be asserted to prevent disclosure of confidential communications to or from WSGR, Pillsbury, EY or any Communications to any third party. For of the avoidance of doubtSecurityholders and their respective Affiliates; provided, nothing in this Section 10.13 or in this Agreement shall be deemed a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure of any Communications to any third party, and neither the Stockholder Representative nor any Company Holder shall take any action, or cause the Firm to take any actionfurther, that would reasonably be expected to none of Parent, the Surviving Corporation or any of their respective Affiliates may waive any such privilege or protection to any third party. [remainder without the prior written consent of page intentionally left blank]the Seller Representative.
Appears in 1 contract
Samples: Purchase Agreement
